As far as the evidence related to CCTV footage and gait analysis report is concerned, there are two aspects which require discussion – first, whether re-enactment of a crime scene by the accused amounts to personally incriminating testimony barred by Article 20(3) of the Constitution and second, whether the CCTV footage and gait analysis report are admissible in evidence and can be relied upon.{Para 83}
11 Now Sections 23(1) and 23(2) of Bharatiya Sakshya Adhiniyam, 2023(“BSA”) emerge primarily because the larger public interest in adopting technically advanced investigations often comes in a conflict with the constitutional and statutory rights of the accused which ensure fairness and lie at the heart of our criminal justice system. Therefore, such issues demand appropriate balance.
86. Invariably, the core test that has been applied in resolving
these issues is whether the act in question merely requires an
accused to act in a certain manner or to perform an act, without
giving any personal testimony, or in alternative, whether it
compels him to disclose incriminating information from his
personal knowledge. If it is the former, the act is constitutionally
valid as it merely amounts to assistance in the course of
investigation and the act, in itself, does not amount to any
personal testimony. However, if it is the latter, the act becomes
constitutionally impermissible as it effectively compels an
accused to be a “witness against himself”.
88. The re-enactment or demonstration of an occurrence by an
accused is often based on eye-witness accounts of the offence or
on the basis of CCTV footage extracted from nearby cameras
installed in public spaces. Nevertheless, it cannot be held as a
general proposition that every re-enactment or demonstration of
a crime scene per se amounts to personal testimony of the
accused. If the re-enactment is merely based on a direction to
walk or to act a certain way or to imitate a visual sequence, it
does not necessarily involve any physical manifestation or
disclosure of the personal knowledge of the accused. In that
sense, it does not amount to any personal testimony. However, if
the accused is somehow led into demonstrating the incriminating
acts committed by him from his own knowledge, the same would
amount to testimonial compulsion and would be squarely hit by
Section 25 and 26 of Evidence Act. Therefore, it would be
dangerous to lay down a general rule against the admissibility of
evidence based on re-enactment or demonstration of the
occurrence, as it would effectively kill a potent and scientific
investigative technique. The right approach is to tread a
proportionate path and see whether the re-enactment is merely a
directed demonstration to analyse physical attributes of the
suspects or a manifestation of the personal knowledge of the
accused. Although, we must be mindful of the fact that
inherently, by its very nature, an exercise of re-enactment of
occurrence is carried out as per the directions given by the
investigating officer and the re-enacted version does not amount
to a personal version of the accused. Rather, it remains an
enactment or demonstration of the version of the investigating
officer. Per se, a re-enactment of an occurrence is merely
‘created’ document/evidence and on its own, it hardly proves
anything. On the basis of such re-enactment, expert analysis such
as gait analysis is carried out, which gives rise to a distinct piece
of evidence, with distinct implications. Such expert evidence is
not based on the personal testimony of the accused and is merely
an analysis of the physical attributes of the accused, which could
be used for the purpose of identification during trial. Thus, the
thin line between ‘re-enactment’ and ‘evidence based on re-enactment’ needs to be acknowledged.
89. Importantly, it needs to be noted that evidence based on a
re-enactment or demonstration is not a substantive piece of
evidence of the actual commission of the offence. It is merely
corroborative evidence which may be useful to corroborate the
identities and physical attributes of the suspects, sequence of the
alleged occurrence, physical attributes of the place of occurrence
etc. On its own, re-enacted evidence cannot be made the basis to
arrive at a finding of conviction.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 2493-2502 OF 2025
THE STATE OF TAMIL NADU Vs PONNUSAMY & ORS.
Author: SATISH CHANDRA SHARMA, J.
Citation: 2026 INSC 507
Dated: May 19, 2026.
“The greed of gain has no time or limit to its
capaciousness. It’s one object is to produce and
consume. It has pity neither for beautiful nature nor
for living human beings. It is ruthlessly ready
without a moment’s hesitation to crush beauty and
life.” – Rabindranath Tagore
1. The need for this Court to begin with the aforenoted words
of Rabindranath Tagore emanates from the fact that the present
case is a classic illustration of how humans tend to surpass all
limits of sound human behavior and even go to the extent of
crushing human lives in the pursuance of their greed. A disputed
piece of land, contesting claims over the same, prolonged
litigation, unsuccessful attempts to favourably turn the pending
litigations, a reputed doctor of Chennai, a land-grabbing mafia,
Criminal Appeal Nos. 2493-2502 of 2025 Page 2 of 96
few advocates, few henchmen and a broad day-light murder in
Chennai. These are the highlights of what we are about to discuss
in the present case.
2. The case pertains to the murder of Dr. Subbiah, a reputed
doctor working at Billroth Hospital, Raja Annamalaipuram,
Chennai. On 14.09.2013, at about 05:00 PM, the deceased doctor
wrapped his work for the day and left the hospital. As he came at
1st Main Road outside the hospital, he was attacked by three men
– A8, A9 and PW121 - with a sickle and the deceased sustained
multiple injuries on his head, neck, shoulder, right forearm, etc.
He was immediately shifted to Billroth Hospital,
Annamalaipuram for treatment. However, as his condition
worsened, he was shifted to Billroth Hospital, Aminjikarai,
where he succumbed to injuries on 23.09.2013 at about 01:00
AM. The case, which was initially registered under Section 307
of Indian Penal Code, 18602, was converted into one under
Section 302 IPC after the demise of the deceased on 23.09.2013.
3. Investigation of the case revealed that there was a
prolonged dispute between the deceased and the family of A1
regarding title/ownership of a land parcel admeasuring 2 acres in
Anjugramam Village, Kanyakumari District. It is not necessary
1 For clarity of record, the accused persons have been referred with their original ranks
before the Trial Court.
2 Hereinafter referred as “IPC”
Criminal Appeal Nos. 2493-2502 of 2025 Page 3 of 96
for this Court to elaborate the details or background of the land
dispute, except to note that various complaints were lodged by
the deceased against A1 and his family members regarding
commission of criminal trespass. One such complaint was lodged
in 2013 before the Land Grabbing Cell by PW-9, who was
Manager of the deceased. A compromise meeting had taken
place between the parties after the said complaint; however, the
accused persons were not inclined for a compromise and
consequently, a criminal case no. 57/2013 was registered against
A1 and A2 on 04.04.2013. Thereafter, the accused persons
sought and got anticipatory bail. It was followed by an
application for cancellation of the anticipatory bail by the
deceased.
4. The issue escalated again on 27.06.2013, when A3, A4 and
A6 caused damage to the fencing of the property and this incident
led to the registration of another criminal case no. 476/2013
against the accused persons. It is the case of the prosecution that
the accused persons were quite agitated with the conduct of the
deceased in filing criminal complaints against them as well as in
filing the application seeking cancellation of anticipatory bail
granted to A1 and A2. This frustration gave rise to motive for the
crime, which ultimately culminated into the commission of
murder of the deceased. It is the case of the prosecution that the
accused persons felt that if the deceased is eliminated, they would
Criminal Appeal Nos. 2493-2502 of 2025 Page 4 of 96
be able to enjoy or dispose of the disputed property without any
hindrance as the deceased would be survived only by his wife
and two daughters. That’s how the foundation of the criminal
conspiracy to eliminate the deceased was laid down.
THE CONSPIRACY
5. The first conspiracy meeting took place in the first week
of July 2013, between A3, A5, A6, A7 and A10 (A10 was granted
pardon and turned into an Approver and was ultimately examined
as PW12). In the said meeting, a plan was made to engage the
services of A8, A9 and PW12. A1 and A2 were also called for
the meeting and accordingly, they joined the conspiracy and
offered to give 50% of the property value to A5 and others, if Dr.
Subbiah was done away with. The second conspiracy meeting is
said to have taken place on the disputed land in the last week of
July 2013, in which A1 to A3, A5 to A9 and PW12 were present.
In the said meeting, PW4 and PW5 (land brokers) were also
called to look for prospective buyers for the disputed property.
When the brokers enquired from A5 regarding the presence of a
board outside the property, stating that the land belonged to Dr.
Subbiah, A5 told them that Dr. Subbiah would be eliminated
soon. To this, all the accused persons laughed and nodded in
approval.
Criminal Appeal Nos. 2493-2502 of 2025 Page 5 of 96
6. After this meeting, A1 and A3 started transferring cash to
A5, and the address details, car details and photographs of
deceased, were given by A3 and A5 to A7, who-in turn supplied
the same to his henchmen - A8, A9 and PW12. On 11.08.2013,
almost a month before the fateful day, A8, A9 and PW12 came
to Chennai from Anjugramam Village and stayed in Bakkiyam
Lodge at Sungaram Chetty Street upto 14.08.2013. The purpose
of this visit was to conduct reccy, to watch the movements of the
deceased and to execute the plan. On 14.08.2013, precisely a
month before the date of crime, the three accused persons went
to Billroth Hospital along with A7, where they met PW8, a friend
of A7. The plan could not be executed on 14.08.2013.
7. During the first week of September, A8, A9 and PW12
went to Tirupur along with A6 and A7 to meet DW2, who is the
brother-in-law of A6. As per the case, A5 had sent Rs.6.5 Lacs
to DW2 in several instalments and DW2 withdrew the said
amount and kept it in cash for making payments for the crime.
DW2 gave Rs.6.5 Lacs to A6 who, in turn, distributed Rs. 1.5
Lacs each to A8, A9 and PW12 and kept the remaining Rs.2
Lakhs with himself.
8. Thereafter, on 12.09.2013, A8, A9 and PW12 met A7, who
gave them Rs. 10,000/- each for purchasing a second-hand Pulsar
bike from PW29 from Valliyur. The bike was supposed to be
Criminal Appeal Nos. 2493-2502 of 2025 Page 6 of 96
used for the commission of crime and was sent to Chennai by
parcel. A9 accompanied the bike. A8 and PW12 reached Chennai
in a Government bus and stayed in Aruna Lodge upto
14.09.2013. They checked out of the Lodge at 12 o'clock and left
the hotel at around 12:45 PM. Since, the bike had developed a
mechanical problem, the accused persons took it to PW26 and
got it repaired. Eventually, they reached the scene of occurrence
at 4:00 PM. After reaching, A8 and PW12 went to the hospital
and met the Secretary of the deceased PW34 and enquired from
her regarding the time when the deceased would come out of the
hospital. After confirming the presence of the deceased, they
came to the place where the car of the deceased was parked,
which was opposite to Billroth Hospital at about 5:00 PM, and at
about 5:07 PM, the deceased left the hospital and when he
reached the location of car and attempted to enter his car, after
adjusting his rear-view mirror, A8 and A9 attacked the deceased
indiscriminately. During this time, PW12 kept watch and the bike
ready for the accused persons to escape from the place. As soon
as the culprits left, the deceased was rushed to the hospital.
9. Afterwards, PW1, the brother-in-law of the deceased came
to know about the attack on the deceased and rushed to Billroth
Hospital where the deceased was getting treatment.
Subsequently, after enquiries, he went to E4-Abiramapuram
Police Station and lodged a complaint (Ex. P1). On the said
Criminal Appeal Nos. 2493-2502 of 2025 Page 7 of 96
complaint, PW57 registered an FIR as Cr. No. l352 of 2013 for
the offence under Section 307 IPC (Ex. P162). Thereafter, PW57
went to the scene of the occurrence and examined PW1 at the
police station. He revisited the scene of occurrence at about 9:00
PM and prepared the Observation Memo (Ex. P3) and Rough
Sketch (Ex. P163). Thereafter, he seized the bloodstained earth
(M.0.37) and unstained earth particles (M.0.38) in the presence
of the witnesses. Thereafter, he checked the CCTV camera
installed in an apartment by the name "Shreshta Subhashree" and
discovered that the incident was captured in the camera.
10. In the complaint, PW1 referred to the enmity between the
family of the accused viz., A1 to A4 and the deceased regarding
the disputed land. On 23.09.2013, PW55 (subsequent
Investigating Officer/IO) received the information that Dr.
Subbaiah had passed away. He went to the hospital and sent the
body for a postmortem to Royapettah Government Hospital. He
examined the other witnesses, conducted an inquest and prepared
the inquest report (Ex. P150).
11. Thereafter, A3 and A4 surrendered before the concerned
Metropolitan Magistrate, Saidapet. On 27.09.2013, PW55 filed a
petition to take the accused into police custody, and on
29.09.2013, the Special Team brought A1 and A2 for enquiry.
PW55 arrested both of them, recorded their statements and
Criminal Appeal Nos. 2493-2502 of 2025 Page 8 of 96
produced them before the Magistrate for judicial remand. He
examined PW13 on 09.10.2013, and wrote letters to the
Association of the apartment owners of Shreshta Subhashree
apartments and also to the RR Donnelley Company to obtain the
hard disc containing the recording from the CCTV cameras. On
the same day, the President of Shreshta Subhashree Apartment
Owners' Association, one Leela Natarajan/PW25 handed over
the hard disc to PW57, which was seized by him vide seizure
memo Ex. P28. The hard disc was marked as M.0.9. On the same
day, the Security Manager of R.R. Donnelley, one Dayalan (not
examined) handed over the hard disc M.O.10, which was seized
vide Ex. P29. He examined both of them and sent the hard discs
under Form-95 to the Court on 10.10.2013. On 22.10.2013, he
made a requisition before the Court to send the hard discs for
examination. On the same day, an order was passed and the hard
discs (M.0.9 and M.O.10) were sent to the Forensic Science
Laboratory at Myalpore for examination. Thereafter, the
investigation was handed over to PW56. Later, PW56 received a
letter from the Forensic Science Laboratory stating that the hard
discs could not be examined in the absence of DVR. He sought
for the DVR, however, he was informed that the DVR was
scrapped.
12. Investigation continued and the IO collected the call detail
records of the accused A1 to A4. On 29.01.2014, he again
Criminal Appeal Nos. 2493-2502 of 2025 Page 9 of 96
examined PW1, PW9 and PW13. On the basis of their statements
and investigation conducted thus far, the IO ascertained that A7
to A10 were also involved in the offence and arrested them on
the same day from a bus stop near Jain College, Thuraipakkam,
Chennai at about 6:00 PM. He recorded the statements of all the
accused A7 to A10 and on the basis of the confession of A8, he
seized a black-coloured shoulder bag (M.0.3), a bloodstained
shirt (M.0.44), and a bloodstained knife (M.0.1) vide seizure
memo (Ex. P19). The seizure was effected from a dilapidated
building near the Tahsildar's Office near Chamier's Road,
Chennai. On 31.01.2014, he made requisition for the conduct of
Test Identification Parade for witnesses, Vinothkumar (PW2),
Muthuvel (PW3) and Gopinath (PW9).
13. After the completion of investigation, the IO filed a final
report before the concerned Magistrate on 06.05.2015 for the
offences punishable under Sections 120-B, 109, 341, 302 read
with 34 of the IPC against A1 to A9. After compliance of Section
207 Cr.P.C., the case was committed to the Court of Sessions and
was registered as S.C. No.348 of 2015. After the accused persons
pleaded not guilty, the trial was commenced and during the trial,
A10 was granted pardon and was later examined as PW12. To
prove the case, the prosecution examined 57 witnesses as PW1
to PW57, marked 173 exhibits as Ex. P1 to P173, and marked 42
Material Objects as M.0.1 to M.0.42.
Criminal Appeal Nos. 2493-2502 of 2025 Page 10 of 96
14. The respondents/accused persons examined 3 witnesses as
D.W.1 to D.W.3 and marked 7 exhibits as Ex. D1 to D7. Court
Exhibits viz., C1 to 05, were also marked.
15. After trial, the Trial Court found all the accused persons
guilty and sentenced them to imprisonment under different
heads. For their conviction under Section 302 IPC, A1, A3, A4,
A5, A7, A8 and A9 were sentenced to death and in accordance
with Section 366 Cr.P.C., the sentences of death were sent for
confirmation to the High Court. Separately, the respondents also
assailed their conviction and sentence before the High Court.
Both sets of proceedings were disposed of by the High Court of
Judicature at Madras vide common judgment dated 14.06.20243
passed in R.T. No. 2 of 2021 and Crl. Appeal Nos. 262, 454, 455,
456, 457, 458, 459, 460 and 462 of 2022. By the said common
judgment, the High Court reversed the conviction of the
respondents and acquitted them under all the charges. The same
is under challenge before this Court and is hereinafter referred as
the impugned judgment.
IMPUGNED JUDGMENT
16. While setting aside the conviction of the respondents and
acquitting them of all the charges, the High Court re-appreciated
3 Hereinafter referred as “the impugned judgment”
Criminal Appeal Nos. 2493-2502 of 2025 Page 11 of 96
the evidence on record and found various faults with the findings
of the Trial Court. Before proceeding to the case before us, we
deem it necessary to discuss the grounds which prevailed before
the High Court in a bit more detail.
17. On the evidence of approver/PW12, the High Court
observed that the approver’s evidence was full of contradictions
and omissions. PW12 stated in his examination in chief that he
was aware of the meetings at the disputed land wherein the
conspiracy was forged, however, in his cross-examination, he
was confronted with his statement under Section 161 Cr.P.C.,
and he stated that he could not remember. It observed that as
regards the conspiracy meeting between A3, A5, A7 and A8
wherein the potential value of disputed land as Rs. 40 crores was
discussed, photograph of deceased was shown to A8, and A7 had
promised to execute the job with the aid of A8, A9 and PW12,
the approver PW12 firstly, in his confession, stated that he was
informed of the same by A8. Later, he improved his version in
examination-in-chief and cross-examination and incriminated
other accused persons. The Court also observed that this
improvement in the version of PW12 is also corroborated by the
evidence of PW56, who had recorded the confession of PW12.
The Court further observed that PW12 had also admitted that his
statement regarding the presence of a client PW53 during the
meeting at the house of PW5 was also not made in the statement
Criminal Appeal Nos. 2493-2502 of 2025 Page 12 of 96
and was improved later. As regards the presence of A6 also, the
Court observed that the participation of A6 in the conspiracy
meeting was also an improvement as it was not stated by PW12
in his statement to the police.
18. In further appreciation of the evidence of PW12, the Court
observed that the incriminating fact of payment by DW2 to A6,
following by disbursals to the assailants, was not stated by PW12
in his confession due to fear and was also a material
improvement. The Court also pointed out other contradictions
from the testimony of PW12, in comparison with his police
confession, and observed that PW12 stated various vital facts for
the first time in his deposition. The Court also observed that in
his police confession, PW12 had denied any direct knowledge of
the conspiracy, however, he uttered otherwise in his deposition
in the Court. In addition to the improvements in the version of
PW12, the Court also disbelieved the reason assigned by PW12
for turning an approver i.e. remorse. The Court observed that
PW12 was questioning the prosecution’s case all along and had
also moved an application seeking protection from harassment
by the police during investigation. The Court further observed
that the circumstances wherein PW12 became an approver
required material corroboration of his evidence. The relevant part
reads thus:
Criminal Appeal Nos. 2493-2502 of 2025 Page 13 of 96
“20. …
(d). … As we have stated earlier, the delay in
filing the application and the time chosen by him
though may not be the grounds to eschew his
evidence, but are factors to be kept in mind while
appreciating his evidence. Therefore, this Court in
the peculiar facts of this case while appreciating
PWl2's evidence has to look for corroboration on
all the material aspects and the corroboration has
to be through unimpeachable evidence.”
19. The Court then examined the evidence led by the
prosecution to prove the conspiracy. The Court examined the
evidence of PW53, the client who overheard the conversation
between the accused persons, and observed that he was merely a
chance witness whose presence was highly doubtful. It further
observed that he was introduced as a witness at a belated stage
and it was a desperate attempt by the prosecution to suit its case.
The Court also observed that the circumstances wherein PW53
was found and examined by the IO also belied common sense and
logic.
20. The High Court observed on similar lines regarding the
evidence of PW4 and PW5, and held that they were introduced as
witness to suit the prosecution version. The Court observed that
both the said witnesses were examined after considerable delay
and there was no explanation for the same. The testimony of
Criminal Appeal Nos. 2493-2502 of 2025 Page 14 of 96
PW32, the photographer who had taken printout of the
photograph of the deceased at the instance of A8, was also
discarded by the High Court by observing that he could not have
remembered all his customers after such delay and he failed to
produce any other record of the visit by the accused persons.
21. Further, the Court dealt with the statement of PW6 who
deposed regarding the handing over of visiting card of the
deceased to A8 and PW12 by A5 as well as disclosure of the
details of the deceased’s work place to the assailants. The Court
observed that there was nothing unusual in the fact that A5 was
carrying the visiting card of the deceased and the seizure of
visiting card of the deceased from A5 was also not of any
consequence. The Court discarded the statement of eye witness
PW3 and observed that his testimony was unnatural and was
recorded five months later. It also observed that the conspirators
would not have discussed the minute details of conspiracy in a
manner that it could be heard by a third person such as PW3.
22. As regards money trail, the High Court observed that the
money was indeed transferred as alleged by the prosecution, but
the purpose of such transfers was not clear in light of the
testimony of DW2, who ought to have been examined as a
witness by the prosecution to ascertain the purpose of transfer.
The Court noted that DW2 was examined on behalf of the defence
Criminal Appeal Nos. 2493-2502 of 2025 Page 15 of 96
and he deposed that such transfers had taken place previously also
and the money was meant for missionary work and to help
youngsters.
23. The Court also examined the testimony of PW37, an
independent witness who had witnessed the exchange of money
between the accused persons, and observed that PW37 was a
chance witness whose presence has not been explained by the
prosecution. It further observed that the IO could not explain as
to how he discovered PW37 and found it to be unnatural that
PW37 handed over the money to the accused persons in cash in
the presence of a stranger. Further, the Court found the evidence
of DW2 to be more reliable than that of PW37. The Court also
noted that DW2, Maheshwaran and Babu were examined by the
IO during investigation, however, they were not examined by the
prosecution during trial. The non-examination of the said
witnesses during trial, as per the impugned judgment, raised
doubts in the case of the prosecution.
24. As regards the call details records (CDRs) indicating that
the accused persons were in touch with each other, the Court
observed that the said call detail records were received by PW45
from the telecom companies. However, no witnesses were
examined from the telecom companies to prove the same and the
CDRs were placed on record along with the certificate under
Criminal Appeal Nos. 2493-2502 of 2025 Page 16 of 96
Section 65-B of Indian Evidence Act, 18724 of PW45. The Court
observed that the prosecution ignored the fundamental principle
of proving a document and merely because PW45 had collected
the CDRs during the course of investigation, he did not become
the competent person to prove the same.
25. Thereafter, the High Court dealt with the extra-judicial
confession made by A6 to PW7 and observed that PW7 was a
complete stranger to A6 and there was no corroboration of the
said confession. It further observed that an extra-judicial
confession is a weak piece of evidence and without corroboration
of the confession made to a stranger, it does not inspire
confidence of the Court.
26. As regards motive, the High Court observed that it is the
admitted position that there were disputes between the parties
involved in the case, however, mere pendency of dispute is of no
consequence if there is no sufficient evidence on record. The
Court further observed that since conspiracy was not proved,
mere motive is of no consequence.
27. The High Court further noted that there was a considerable
delay in the examination of witnesses and held that the
prosecution did not succeed in explaining the delay to the
4 Hereinafter referred as “Evidence Act”
Criminal Appeal Nos. 2493-2502 of 2025 Page 17 of 96
satisfaction of the Court. It further observed that the documents
were not dispatched to the Magistrate without delay and the same
was also without an explanation. The relevant paras of the
impugned judgment read thus:
“23. …
(vi) From the above judgments, it would be clear
that the delay in the examination of witnesses may
not be a reason to reject the testimony of the
witness, provided the investigating officer and the
witness offered plausible explanation for the
delay. In any case, where there is a delay in the
examination of witness, the Courts also have to be,
cautious in appreciating the evidence, even if
some explanation is offered.
(vii)- As to whether the delay in the examination
would affect the credibility of the witnesses would
depend on the facts and circumstances of each
case. Factually, in the instant case, we find that the
delay has not been explained properly and the
explanation sought to be given by either the
witnesses or the investigating officer as discussed
earlier, belies common sense.”
28. While discussing the evidence against the accused persons
separately, the High Court observed that the prosecution failed to
prove the criminal conspiracy against accused nos. 1 to 7. As
regards the assailants (accused nos. 8, 9 and PW12), the Court
Criminal Appeal Nos. 2493-2502 of 2025 Page 18 of 96
examined the electronic evidence on record and observed that Ex.
P155, a pen drive containing the backup copy of the CCTV
footage extracted from the hard disk, could not be relied upon by
the prosecution as it contained a truncated copy which cannot be
relied upon to identify the accused persons. Further, the Court
observed that Ex. P155 was never shown to the eye witnesses
PW2 and PW3 for the purposes of identification. The Court also
doubted the manner in which cloned copies of the CCTV footage
were made by PW54 as the hard disk was not functioning when
it was originally sent to the Forensic Science Laboratory, for want
of DVR. Further, PW54 could not make the cloned copies, when
a request in that regard was made by the defence, on the ground
of hard disk failure. The Court analyzed this issue in light of the
testimony of PW57, who had deposed that before collecting the
hard disk from the concerned Society, a copy of the CCTV was
made and handed over to Constable Parthiban in a pen drive. The
Court noted that the said Constable was never examined as a
witness by the prosecution and since, the original footage could
not be retrieved from the hard disk, it was probable that the gait
comparison of the accused persons was based on the copy of the
footage and not the original footage. The relevant part reads thus:
“(ix) It may be relevant to point out here that
PW57 had stated in the cross examination that
after the occurrence and before collecting the hard
Criminal Appeal Nos. 2493-2502 of 2025 Page 19 of 96
disc from Shreshta Subhashree apartments, he
copied the footage on a pen drive through a
Constable by name Parthiban, who was not
examined by the prosecution. This pen drive was
neither sent to the Court nor marked by the
prosecution. However, strangely, when the
forensic science lab could not retrieve the video
due to the absence of DVR, it is not known as to
how, PW54 alone could take a backup copy, that
too a truncated version and store it in Ex.P155.
Hie fact that cloned copies also could not be made,
raises doubt as to whether PW54 had taken the
backup copy from the hard disc, especially in the
light of PW57's evidence that he was in possession
of a pen drive taken earlier, immediately after the
occurrence.”
29. The Court further observed that the IO PW56 never made
any request for obtaining the DVR from PW25, as is evident from
the testimony of the latter. On this basis, the Court discarded Ex.
P155 as a reliable piece of evidence. Importantly, the Court then
analyzed Ex. P157, the report filed by PW54, wherein she opined
that the gait pattern of the individuals seen in the two videos
(CCTV footage and demonstration video) were same. The Court
questioned the right of the investigating agency to compel the
accused persons to re-enact the occurrence and examined the
admissibility of such evidence. Considering the mandate of
Criminal Appeal Nos. 2493-2502 of 2025 Page 20 of 96
Article 20(3) of the Constitution of India, 19505, the Court held
that re-enactment of the occurrence by the accused persons
amounts to personal testimony during police custody and the
same is inadmissible in evidence. Further, the Court found that
the demonstration video was hit by Section 25 and 26 of Evidence
Act.
30. The High Court’s opinion as regards visual/CCTV
evidence is encapsulated in the following para:
“(iii) Considering the fact that the cloned copies
could not be produced, because of alleged
mechanical failure; the fact that the investigating
officer had copied the footage on a pen drive and.
had not produced it before the Court; the version
of PW54 that a truncated backup of the footage
was taken being doubtful; besides the act of the
investigating officer in referring it to a private lab
and the 'not so-good' reputation of the said private
lab; that the prosecution did not establish that the
DVR which was called for by the Government
Lab was scrapped' and for the other reasons
mentioned above, we are of the view that no
reliance can be placed either on Ex.P155-pen
drive or Ex.PI57-report of PW54.”
31. As regards the eyes witnesses, the High Court observed
that the statements of PW2 and PW3 were dispatched to the
5 Hereinafter referred as “the Constitution”
Criminal Appeal Nos. 2493-2502 of 2025 Page 21 of 96
Magistrate after considerable delay and the same rendered the
witnesses as unreliable. The Court further observed that PW3 was
a tutored witness in the hands of the prosecution and his testimony
was artificial in nature. Similarly, the Court found the evidence
of PW2 also as unreliable as he was a chance witness, and
discarded their evidence even for the purpose of corroboration of
the version of PW12/Approver. The Court also discarded the Test
Identification Parade report of the Magistrate on the ground that
the Magistrate/PW51 admitted that all three accused persons were
different in appearances and therefore, the dummy inmates could
not have been similar to all three of them. This, as per the High
Court, violated the requirement that identification parade must be
carried out in the presence of similarly looking persons. The
Court observed that test identification parade of the three accused
persons ought to have been carried out separately. The Court also
observed that the TIP was vitiated because PW56 had shown
pictures and CCTV footage of the incident to the witnesses before
the parade.
32. Further, the High Court discarded the evidence of PW28,
the Manager of Aruna Lodge, by observing that the arrival
register of the lodge was never seized by the IO, the ledger
marked as M.O. 17 did not record any address or name of A8,
who purportedly signed the same, and the signatures were never
compared with the signatures of A8. The Court also found
Criminal Appeal Nos. 2493-2502 of 2025 Page 22 of 96
infirmity in the fact that no test identification parade was
conducted for PW28 to identify the accused. The Court also
disbelieved the identification of the accused by PW27 (room boy
of Arun Lodge) in open Court as the same was done after a lapse
of six years and no TIP was conducted earlier.
33. On these parameters, the High Court re-appreciated the
entire evidence on record and returned a finding of acquittal of all
the accused persons. Consequently, the sentences were also set
aside and the accused persons were released. The said judgment
is under challenge before us.
THE CHALLENGE
34. Taking exception to the impugned judgment, the appellant
State has approached this Court, broadly urging the following
grounds:
i. That the conviction by the Trial Court was based on
credible and reliable evidence including the
evidence of eye witnesses, approver, call details
records, money trail, electronic and scientific
evidence etc.;
ii. That the High Court did not consider the
circumstantial evidence of conspiracy and prior
connection between the accused persons. Further,
Criminal Appeal Nos. 2493-2502 of 2025 Page 23 of 96
the Court proceeded on a prejudicial notion that all
conspiracies are essentially hatched in secrecy and
no conspiracy could be heard by any third person;
iii. That the Court erred in rejecting the call detail
records, as the CDRs were duly obtained by the
witness who had produced them through email and
the same were produced before the Court along with
a certificate under Section 65-B of Indian Evidence
Act;
iv. That the Court erred in rejecting the evidence of the
eye witnesses, who had no prior enmity with the
accused persons and whose testimonies were duly
corroborated by the evidence of PW12 and
electronic evidence;
v. That the Court erred in rejecting the evidence of the
approver on the basis that it was not consistent with
earlier statement/confession given to the police, as
some omissions are bound to happen in a
statement/confession given to the police under fear,
coercion or influence;
vi. That the High Court erroneously exhibited an
additional document Ex. C6 (Letter written by the
Criminal Appeal Nos. 2493-2502 of 2025 Page 24 of 96
Trial Court on the administrative side) during the
appeal without following the procedure under
Section 294 Cr.P.C. and directly at the time of
judgment, without providing any opportunity to the
prosecution to question the same;
vii. That the High Court laid undue emphasis on the
alleged bias of the concerned Trial Judge who had
granted the pardon to PW12, despite the fact that no
judgment was rendered by the said Judge and the
potential conflict was also disclosed by the
concerned Judge herself in order to maintain the
sanctity of the proceedings;
viii. That the Court erred in holding that the reenactment
of the crime by the accused persons
amounted to confessional statements within the
meaning of Section 25 of Evidence Act and was hit
by Article 20(3) of the Constitution. It is submitted
that voluntary re-enactment of crime by the accused
persons, without undue influence or coercion, does
not amount to confession and it only indicates the
familiarity of the accused persons with the crime
scene;
Criminal Appeal Nos. 2493-2502 of 2025 Page 25 of 96
ix. That the High Court erred in summarily rejecting
the testimony of PW19 regarding the recovery of
incriminating material, such as weapon of offence,
blood-stained clothes etc., in furtherance of the
statement of the accused. It is urged that the said
recovery is duly admissible as per Section 27 of
Evidence Act and the same was made in the
presence of a neutral government witness;
x. That the Court erred in not analyzing the frivolous
defence taken by A8 that the deceased died by
accident. The failure of A8 to substantiate the
defence ought to have resulted in an adverse
inference against him;
xi. That the High Court erroneously rejected the
evidence related to CCTV footage merely on the
basis of doubtful credibility of the private lab, and
without examining the quality of evidence and
corroborative factors. It is submitted that mere
involvement of a private lab does not automatically
disqualify the evidence as procedural safeguards
and chain of custody were duly maintained;
xii. That the High Court laid undue emphasis on the
non-availability of DVR, instead of independently
Criminal Appeal Nos. 2493-2502 of 2025 Page 26 of 96
examining the probative value of the evidence on
record i.e. CCTV footage and report Ex. P157;
35. The written submissions filed on behalf of the State of
Tamil Nadu also contain similar submissions. On similar lines,
the complainant has also filed detailed written submissions. We
have carefully gone through the same, however, for brevity and
to avoid repetition, we are not reproducing the submissions.
36. Responding to this challenge and arguing in favour of the
impugned judgment, the accused persons have addressed
separate arguments and have filed separate written submissions.
It is deemed proper to incorporate the contentions raised on
behalf of the accused persons separately, so as to not curtail the
zone of consideration in any manner.
GROUNDS URGED BY ACCUSED NO. 1, 2 & 3
37. Accused no. 1, 2 and 3 have broadly urged the following
grounds:
i. The appellate court must not ordinarily reverse a
judgment of acquittal as long as the impugned
judgment reflects a legally plausible view and is not
unsustainable;
Criminal Appeal Nos. 2493-2502 of 2025 Page 27 of 96
ii. The evidence of PW12 is unreliable, hearsay and
full of material contradictions and omissions as
material aspects of his evidence are missing from
his testimony recorded under Section 161 Cr.P.C.;
iii. The Trial Court did not properly appreciate the
omissions and contradictions and brushed them
aside by observing that they were immaterial;
iv. The testimony of PW12 was not corroborated in
accordance with law and the Trial Court cursorily
concluded that it was duly corroborated, without
noting that the witnesses who purportedly
corroborated PW12 i.e. PW4, PW5 and PW53 were
themselves not reliable;
v. The High Court rightly concluded that PW53 was
merely a chance witness who was a total stranger to
the other accused persons, except A5. Further, the
Court rightly concluded that the presence of PW53
was not properly explained and there was an
inherent improbability in his version;
vi. The Trial Court did not examine the credibility of
PW4 and did not examine crucial aspects such as
belated disclosure, suspicion and contradiction
Criminal Appeal Nos. 2493-2502 of 2025 Page 28 of 96
regarding the discovery of PW4 as a witness by the
IO, improbability of the version of PW4 and
absence of justification of the presence of PW4 at
the spot;
vii. The evidence of PW5 is equally vulnerable for the
reasons applicable to PW4. Additionally, PW5
chose to appear after a considerable delay despite
being a witness of the conspiracy meeting and
despite being aware of the murder of the deceased.
Further, his statement was dispatched to the
Magistrate after inordinate delay without any
plausible explanation;
viii. The CDRs have not been proved in accordance with
the law as the same were not proved by the author
of the document i.e. nodal officer of the telecom
company. PW45 was neither the author nor witness
of such authorship of the CDRs and he was merely
a recipient who could not have proved the same;
ix. As per Section 65-B of Evidence Act, CDRs could
have been proved only by a person having lawful
control over the computer that produced the
electronic record and therefore, a certificate under
Section 65-B ought to have been filed by the
Criminal Appeal Nos. 2493-2502 of 2025 Page 29 of 96
concerned nodal officer of the telecom company.
Since, PW45 had no lawful control over the
computer which was used to produce the CDRs, he
could not have filed a certificate under Section 65-
B in support of the CDRs;
x. PW45 produced the CDRs in the Court in Excel
format, which could be easily edited or manipulated.
He ought to have filed the same in PDF format to
avoid any possibility of manipulation;
xi. The money trail between the accused persons was
not unusual as the accused persons were known to
each other and the explanations furnished by them
at the stage of examination under Section 313
Cr.P.C. were plausible and acceptable on the anvil
of preponderance of probabilities;
xii. The Investigating Officers failed to carry out
independent investigation in the matter as they
admitted that they did not investigate other persons,
who had claimed the disputed land and had enmity
with the deceased;
xiii. The entire investigation was directed at the instance
of PW1, and PW57 admitted that he obtained
Criminal Appeal Nos. 2493-2502 of 2025 Page 30 of 96
information of the case from PW1, who was
conducting his own investigation alongside;
xiv. The entire investigation was influenced by DCP
Thiru Balakrishnan who got married to the daughter
of the deceased. PW57 (IO) admitted that the
statements of 39 out of 89 witnesses were recorded
after DCP Balakrishnan took charge of the area;
xv. The statement of PW12 recorded during the course
of investigation was a statement under Section 161
Cr.P.C. and it was permissible to use the same as per
Section 162 Cr.P.C.;
xvi. The statement of PW12 recorded under Section 161
Cr.P.C. could be used for the purpose of
contradiction during evidence, and omissions and
contradictions from the same could be relied upon
to impeach the credibility of the witness;
GROUNDS URGED BY ACCUSED NO. 4
38. Accused No. 4 has broadly urged the following grounds;
i. The prosecution has failed to prove the conspiracy
beyond reasonable doubt and the witnesses of the
prosecution are unreliable and chance witnesses;
Criminal Appeal Nos. 2493-2502 of 2025 Page 31 of 96
ii. It is settled law that the evidence of an approver
requires material corroboration, however, the
evidence of PW12 has not been corroborated by
other evidence on record;
iii. The presence of A4 in Chennai has not been proved
on the basis of credible evidence as PW38 was not
the reporting officer of A4 who sanctioned his leave,
and the reporting officer has not been examined by
the prosecution. Furthermore, the manual
attendance register and leave application of A4 were
not produced by the prosecution;
iv. The evidence of PW13 was not even considered by
the Trial Court and her statement that she saw A4
around her house in the 2nd week of September,
2013 was not corroborated by any evidence.
Furthermore, she identified A4 only after seeing his
picture on television despite the fact that they were
relatives.
GROUNDS URGED BY ACCUSED NO. 5
39. On behalf of accused No. 5, broadly, the following reasons
were advanced for sustaining his acquittal and the impugned
judgment:
Criminal Appeal Nos. 2493-2502 of 2025 Page 32 of 96
i. The State has failed to show any perversity in the
impugned judgment and the judgment reflects a
possible view. Further, it is settled law that if the
judgment under appeal reflects a legally possible
view, it cannot be reversed unless anything
erroneous or perverse is found out;
ii. The prosecution failed to delineate the incriminating
circumstances and to form a complete chain of such
circumstances, which must have been identified and
ought to have been connected with the accused
persons;
iii. The prosecution has failed to dispel the taint of
unfair investigation which reflected a pattern of
planting witnesses, belated examination of
witnesses, belated forwarding of their statements
etc.;
iv. The entire case against A5 is circumstantial in
nature and is filled with weak links;
v. The prosecution has used one infirm piece of
evidence to support another by using PW53, PW4,
PW5 and PW37 to support PW12 and later, to rely
Criminal Appeal Nos. 2493-2502 of 2025 Page 33 of 96
on the version of PW12 to support the former
witnesses;
vi. The role attributable to A5 is distinct in nature as he
was not directly involved in any land dispute with
any of the parties and has been implicated merely on
the basis of association with the family of A1;
vii. A5’s role as a legal professional is admitted and
purely professional acts cannot be converted to
attribute any criminal motive or to infer a link
between A5 and the crime in question;
viii. The threat of “dire consequences” allegedly
extended by A5 is completely vague and is lacking
in material particulars such as the words used,
presence of other persons, to whom it was extended
etc.;
ix. The version of PW9 as regards the naming of A5 in
the complaint of trespass over the disputed land, is
hearsay as he learnt of the same from LW49, who
was not examined by the prosecution citing
availability of overwhelming evidence;
x. The versions of PW9 and PW13 as regards the life
threats extended by A5 are also based on hearsay as
Criminal Appeal Nos. 2493-2502 of 2025 Page 34 of 96
they did not directly hear any such threat, and thus,
their versions are unreliable;
xi. The version of PW53 to prove the conspiracy
meeting at the house of A5 is a complete fabrication
as no trained lawyer or hired killers would loudly
conspire a murder so as to enable the strangers to
hear. Further, the statement of PW53 was recorded
after 7 months and he was able to recall the precise
details of the meeting perfectly, thereby indicating
that he was introduced as an afterthought;
xii. The witnesses of the second conspiracy meeting i.e.
PW4 and PW5 are also chance witnesses whose
discovery was completely unnatural and therefore,
reliance cannot be placed upon their testimonies;
xiii. The version of PW3 is completely unnatural as the
assailants are not expected to be discussing the
details of the conspiracy, benefits of committing the
offence, involvement of other conspirators etc.,
immediately before the commission of the offence
and that too, in the presence of strangers;
xiv. PW3 could not explain his presence at the place of
occurrence, especially because he was visiting the
Criminal Appeal Nos. 2493-2502 of 2025 Page 35 of 96
bank on a Saturday evening. Further, the IO did not
enquire from HDFC Bank as to whether PW3
maintained a bank account at the bank and whether
he had actually met someone at the bank;
xv. The recovery of a visiting card M.O. 8 is of no
importance as a visiting card is not an incriminating
material;
xvi. The money trail relied upon by the prosecution is
also highly improbable as the accused persons
would not have indulged in any bank transfer for
such a purpose, and if the money was actually meant
for any illegal activity, it would have been handed
over in cash as the assailants lived 35 km away from
the village of A1 to A6;
xvii. The version of PW37 is unreliable and improbable
as A6 would not have distributed the cash to the
assailants in the presence of a complete stranger;
xviii. The testimony of DW2 is unshaken and presents a
reasonably possible view insofar as the money trail
is concerned. Furthermore, the prosecution neither
made DW2 as an accomplice in the case nor
Criminal Appeal Nos. 2493-2502 of 2025 Page 36 of 96
examined him as a witness which raised suspicion
on the prosecution;
xix. The bank transfers only prove the movement of
money and not the purpose of such movement;
xx. The testimony of an approver must satisfy the twintest
of reliability and sufficient corroboration as per
the dictum of this Court in Sarwan Singh v. State
of Punjab6;
xxi. The pardon granted to PW12 is vitiated by a
reasonable apprehension of bias on the part of the
concerned Sessions Judge and in view of such
apprehension, the testimony of PW12 must be
approached with greater circumspection;
xxii. The statement given by PW12 to the police duly
qualified as a statement under Section 161 Cr.P.C.
and the same could have been used to contradict
PW12 in accordance with Section 162 Cr.P.C.;
xxiii. The decision in Narayan Chetanram Chaudhary
and another v. State of Maharashtra7 is perincuriam
as it failed to consider the decision of 3-
6 AIR 1957 SC 637
7 (2000) 8 SCC 457
Criminal Appeal Nos. 2493-2502 of 2025 Page 37 of 96
Judge bench in Nandini Satpathy V. P.L. Dani8 and
Kartar Singh v. State of Punjab9 (5-Judge bench).
Further, the decision in Narayan Chetanram
Chaudhary has been disapproved in the recent
decision in P. Krishna Mohan Reddy v. State of
Andhra Pradesh10.
xxiv. There are material contradictions, omissions and
improvements in the version of PW12 on the aspects
of direct knowledge of conspiracy, date of
conspiracy meeting, presence of PW53/client,
second conspiracy meeting, cash payment of Rs. 1.5
lacs each to the assailants, visit to DW2’s house and
recovery of the visiting card of deceased from A5;
xxv. The prosecution has violated the prompt-dispatch
rule as the statements recorded under Section 161
Cr.P.C. were not transmitted to the Magistrate
forthwith; some were forwarded selectively and
others were sent en masse;
GROUNDS URGED BY ACCUSED NO. 6
40. Accused No. 6 urged the following grounds:
8 (1978) 2 SCC 424
9 (1994) 3 SCC 569
10 2025 SCC Online SC 1157
Criminal Appeal Nos. 2493-2502 of 2025 Page 38 of 96
i. A5 and DW2 had long running monetary
transactions even prior to the conspiracy in
question, and the money transferred by A5 to DW2
during the period of conspiracy was Rs. 4,50,000/-
only, which did not match with allegations levelled
by the prosecution;
ii. No recovery of the amount in question was made
from any person and there is no explanation as to
how the said amount was spent;
iii. A6 was not a part of the first conspiracy meeting or
the land dispute between the other accused persons
and the deceased. Further, there was no allegation
against A6 in the evidence of PW13 or PW9;
iv. The evidence of the approver is unreliable and there
are material omissions and contradictions in his
evidence, which makes it unsafe to place reliance
upon the same;
v. There is no infirmity in the findings of the High
Court insofar as A6 is concerned and his acquittal
cannot be reversed by this Court in the exercise of
powers under Article 136 of the Constitution;
Criminal Appeal Nos. 2493-2502 of 2025 Page 39 of 96
GROUNDS URGED BY ACCUSED NO. 7
41. Accused No. 7 has advanced the following grounds:
i. The entire case against A7 is based on unreliable
and belated witnesses and the evidence of PW2,
PW4, PW5, PW53 and PW12 has not been
corroborated by any other evidence;
ii. There is no credible evidence of conspiracy and
there are serious investigative lapses such as
unexplained delays in dispatching statements,
failure to conduct test identification parades, nonexamination
of material witnesses etc;
GROUNDS URGED BY ACCUSED NO. 8
42. The following grounds have been urged on behalf of
Accused No. 8:
i. The reversal of an acquittal must be done only in
rarest of the rare cases wherein the Appellate Court
finds illegality or perversity pertaining to the vital
facts of the case;
ii. The evidence of PW2 is completely unreliable as his
disclosure was belated and his statement was
Criminal Appeal Nos. 2493-2502 of 2025 Page 40 of 96
dispatched after considerable and unexplained
delay;
iii. The entire testimony of PW2 has been tailored to
match the CCTV footage of the incident, as it is
improbable that he could not remember the details
of the incident two days after the incident, but
remembered all the details after more than three
years from the incident;
iv. The material contradictions between the statements
of PW2 recorded under Section 161 Cr.P.C. and 164
Cr.P.C. cannot be reconciled and the contradictions
indicate that PW2 was not actually present at the
place of occurrence;
v. Common features such as belated disclosure,
belated dispatch of statements, open discussions
regarding conspiracy in front of strangers, sudden
appearance and disappearance, unnatural discovery
etc. are applicable to all the chance witnesses of the
prosecution including PW2, PW3, PW4, PW5, PW8
and PW53;
vi. The knowledge of PW12 is co-terminus with the
knowledge of the investigating officer and despite
Criminal Appeal Nos. 2493-2502 of 2025 Page 41 of 96
being an accomplice, he has not disclosed any
additional or exclusive information regarding the
commission of the offence which could have added
credibility to his version;
vii. The testimony of PW12 is wholly derived from the
knowledge of the prosecution and the improvements
in his versions suggests that he kept on improving
as the prosecution imparted him with more
knowledge with the passage of time;
viii. The recovery of sickle and shirt are artificial as the
recovered sickle was not sealed and blood report is
also inconclusive. Further, it is improbable that the
accused would throw the knife near a building close
to the police station;
ix. The evidence of PW32 is wholly unreliable and
unnatural as he had no reason to remember the
customers who had visited his shop on a single
occasion. Further, PW32 admitted that the police
had pointed A8 to him;
x. No face analysis of the persons seen in the CCTV
was carried out and in the absence of face analysis,
Criminal Appeal Nos. 2493-2502 of 2025 Page 42 of 96
gait analysis report becomes the ‘worst’ form of
available evidence;
xi. No reliance could be placed on the CCTV footage
as the hard disk was seized after a month, and when
the same was sent to FSL, it could not be read and
was returned for want of DVR. Later, the same hard
disk was sent to Truth Labs and the said private lab
was able to read it without DVR. Further, when the
accused persons asked for a cloned copy of the
footage and the hard disk was resent to Truth Labs,
the same could not be read again due to mechanical
failure;
xii. The presumption applicable to a government
laboratory is not applicable to a private laboratory;
xiii. Gait analysis is an imperfect and imprecise science
and has not been upheld by any decision of this
Court. Further, it is not unique to any person like
DNA and there is a possibility of mimicking or
copying in the gait analysis;
xiv. The comparison of CCTV footage was not made
with the natural gait of the accused persons, rather,
they were made to perform the same movements
Criminal Appeal Nos. 2493-2502 of 2025 Page 43 of 96
and to re-enact the occurrence. Thus, the gait of the
persons in the CCTV footage and the re-enactment
video was bound to be the same;
GROUNDS URGED BY ACCUSED NO. 9
43. On behalf of Accused No. 9, the following grounds have
been advanced:
i. The presence of A9 in the first conspiracy meeting
has not been proved;
ii. PW 32 did not identify A9 as the person who had
visited his shop for taking print of the photograph of
the deceased and the statement of PW12 to that
effect has not been corroborated;
iii. The presence and role of A9 has not been proved by
the prosecution and the eyes witnesses PW2 and
PW3 are tutored witnesses;
iv. The call detail records between the accused persons
have not been proved and the CCTV footage cannot
be relied upon in evidence;
v. The approver PW12 is an unreliable witness and his
evidence is full of material contradictions and
omissions. The said point has been argued by all the
Criminal Appeal Nos. 2493-2502 of 2025 Page 44 of 96
accused persons on similar grounds and thus, the
particulars of this ground are not being reproduced;
DISCUSSION & ANALYSIS
44. Having set out the case set up by the respective parties, we
may now proceed to consider the seminal question i.e. whether
the respondents/accused persons have committed the offences
mentioned above in relation to the death of Dr. Subbaiah. We
have heard Ld. Counsels appearing for the respective parties at
length and have carefully gone through the record.
45. The respondents have collectively advanced an argument,
which needs to be addressed at the outset, that this Court is not
expected to disturb the impugned judgment until and unless there
is a perversity or illegality or erroneous finding in the impugned
judgment. To buttress, it is submitted that even if there are two
possible views, the view taken by the earlier Court be not
disturbed. No doubt, the said submission reflects the settled
position of law. However, it equally applied to the High Court as
well, when it sat in appeal over the judgment of the Trial Court,
and therefore, it is for this Court to examine whether the High
Court has committed an error in disturbing the findings of the
Trial Court. Nevertheless, this Court is faced with a situation
where two competent Courts have arrived at opposite
conclusions on appreciation of the same set of evidence.
Criminal Appeal Nos. 2493-2502 of 2025 Page 45 of 96
Naturally, it falls upon this Court to re-appreciate the evidence
and to deliver a final finding.
46. The case of the prosecution, as detailed above, rests on oral
as well as documentary evidence. The prosecution has examined
57 witnesses, exhibited 173 documents and 42 material objects
to prove its case. As per the prosecution, A8, A9 and PW12 are
the assailants who committed the murder of the deceased and
collectively, all nine accused persons are the conspirators behind
the said murder. The evidence on record is both direct and
circumstantial, and we may begin with the evaluation of the
direct evidence.
47. PW2 is the first eye witness, who directly witnessed the
commission of offence. He deposed regarding his identity, his
purpose of visit at the place of occurrence, the presence of
deceased, attack on deceased by three assailants, body parts
which were attacked by the three assailants, weapon of assault,
identities of the assailants as A8, A9 and A10 (later PW12) and
the act of calling ambulance. He deposed that he waited for some
time after the deceased was taken to the hospital and thereafter,
he left. He identified the knife in the Court as M.O.1. He deposed
that he went to the police station after two days and in view of
the assault witnessed by him, he was of the view that the deceased
must have died on the spot and therefore, he had stated to the
Criminal Appeal Nos. 2493-2502 of 2025 Page 46 of 96
police that Dr. Subbaiah died on the spot. However, he was
informed by police that Dr. Subbaiah was undergoing treatment
at that time. He also deposed regarding the identification of the
accused persons in Judicial Custody in the presence of the
Magistrate as well as his statement under Section 164 Cr.P.C.
recorded by the Magistrate. PW2 was extensively crossexamined
on behalf of the accused persons, however, his
testimony has remained fairly consistent on material particulars.
No doubt, there are slight contradictions such as whether PW2
was sitting or standing when he witnessed the commission of
murder. However, once the testimony is evaluated on its overall
merit, it appears to be consistent. The contradictions appear in
aspects which are immaterial to the case. The accused persons
have suggested that PW2 was a stock witness, however, there is
nothing to substantiate the same and the accused persons have
merely suggested so without anything more. Furthermore, the
accused persons have not been able to show any association of
PW2 either with the deceased or assailants or the police. The
profession of PW2 is also largely admitted as there are questions
in the cross-examination regarding the advertisements made by
PW2 in the newspaper regarding AC repair work. On being
asked, PW2 also disclosed the name of owner and registered
number of the vehicle/TATA Ace in which he had arrived at the
place of occurrence.
Criminal Appeal Nos. 2493-2502 of 2025 Page 47 of 96
48. PW3 is the next eye witness, who happened to visit the
HDFC Bank near the place of occurrence and was waiting
outside the bank with one Mr. Gopinathan when the incident took
place. He overheard a conversation between the assailants
wherein they expressed their resolve to successfully murder Dr.
Subbaiah, vowed to not repeat the failure of the first attempt and
discussed their expectation of getting a sum of Rs. 50 Lacs from
Advocate Williams/A5 and Dr. James/A7, through Basil/A3 and
Boris/A4, on successful completion of the task. PW3 also
deposed regarding the manner and sequence of assault on the
deceased and the same completely corroborates the sequence
narrated by PW2. He identified the weapon M.O.1 as well as the
accused persons during the test identification parade conducted
by the Magistrate. He admitted Ex. P2 as his statement recorded
by the Magistrate.
49. Furthermore, he provided the account number of the
account maintained by him at the concerned branch and specified
the purpose of visit i.e. to know regarding KYC, which aligns
with his visit on a Saturday. He specifically clarified that he did
not come for any cash transaction. Unlike a tutored witness, PW3
specifically deposed that the assailants did not use the word
“murder”, thereby meaning that the language used by the
assailants was of an indirect nature, which is quite natural. A
tutored testimony would have attributed a direct statement to the
Criminal Appeal Nos. 2493-2502 of 2025 Page 48 of 96
assailants, disclosing the material particulars of the offence. The
discovery of PW3 has also been explained and we find nothing
unnatural if PW3, being a stranger, found it more convenient to
stay away from a murder investigation for a considerable time.
What is important is that there is no prior association or personal
interest or motive which could be imputed to PW3, who has fairly
passed the test of an independent witness. Furthermore, he
corroborated the testimony of PW2 and confirmed that during the
assault, he had heard the words “do not cut brother”. As per PW2,
these were the words uttered by PW2 during the assault. PW3
was also extensively cross-examined regarding the surroundings
of the place of occurrence and no discrepancy was highlighted
which could raise a doubt on his presence at the spot.
50. On a comprehensive analysis of the eye witness accounts
of PW2 and PW3, we are of the view that their testimonies are
wholly incriminating and there is nothing unnatural or doubtful
regarding their presence at the place of occurrence. Their
presence is duly explained and material particulars related to
their visit have been disclosed by both the witnesses in their
cross-examination. Furthermore, the manner of assault and
nature of injuries specified by the eye witnesses are consistent
with the medical examination reports, which is a material
corroboration.
Criminal Appeal Nos. 2493-2502 of 2025 Page 49 of 96
51. The cross-examination conducted on behalf of the accused
persons is all encompassing and even crossing the line of
relevance at various stages. What is consistent is an attempt to
suggest contradictions and omissions in the testimonies of PW2
and PW3. However, we may suffice to note that no material
contradiction has surfaced and the minor contradictions appear
quite natural. Furthermore, there is a gross procedural infirmity
in the manner of contradiction of the PWs as at various stages,
contradictions have been recorded without confronting the
witnesses with the contradictory portions from their previous
statements under Section 161 Cr.P.C. We have no hesitation in
observing that the same is irregular and not in conformity with
the procedure.
52. PW4 and PW5 are the next witnesses in sequence, who
have been relied upon by the prosecution as direct witnesses of
the criminal conspiracy. Both the said witnesses are real estate
agents and were approached by A3 and A5 to look for a party for
the purchase of disputed land in Kanyakumari. In that regard,
PW4 visited the house of A5 where other accused persons were
also present, including A1, A2, A3, A6, A7, A8, A9 and PW12.
When PW4 enquired regarding the signage “This property
belongs to Dr. Subaiah”, he was censored by A5, who pointed
towards the three assailants and stated that they will “take away
the weed”. He further saw that all other accused persons approved
Criminal Appeal Nos. 2493-2502 of 2025 Page 50 of 96
of the same. PW4 deposed that PW5 was also present at the house
of A5, however, he admitted in cross-examination that the said
fact was not stated by him in his statement to police. He further
deposed that he did not remember whether the other accused
persons present at the house of A5 had approved of the remark
made by A5.
53. PW4 explained the location of the house of A5 and its
distance from the disputed land. He also explained that he had
visited the house of A5 to get the patta and encumbrance
certificate for the disputed land. He further deposed that he knew
A5 since 2007 and no contrary suggestion was given by the
accused persons, thereby meaning that PW4 indeed knew A5 for
a considerable period of time and may have been approached by
the latter for the sale of the disputed land. He also deposed that
he had seen A6 prior to his visit.
54. He gave his statement to the police only on 10.03.2014,
which was after a considerable delay. However, we need to see
whether the delay is properly explained. He admittedly got to
know about the murder of Dr. Subbaiah in September, 2013
through news channels, however, he did not disclose it to anyone.
On 10.03.2014, he happened to visit Kanimadam to meet one
Subramani Nadar, his acquaintance from Anju Village, and
police was there to enquire about Yesurajan/A6 and
Criminal Appeal Nos. 2493-2502 of 2025 Page 51 of 96
Williams/A5. Admittedly, Kanimadam is also the native place of
A5. It was during this encounter that he disclosed his knowledge
to the police for the first time. Notably, no counter suggestion has
been given to question this visit by PW4.
55. The accused persons have given a series of suggestions to
impeach the credibility of PW4, such as the pendency of a
criminal case against him. However, no direct or indirect
advantage to PW4 could be shown to flow from the act of
deposing in the present matter. Therefore, no adverse inference
could be drawn on that basis alone. There is one ambiguity in the
testimony of PW4 i.e. whether he had disclosed the presence of
PW5/Bensom at the house of A5 in his initial statement to the
police. He was confronted and it was admitted that he had not
disclosed it. However, it is not an infirmity which strikes at the
root of the evidence of PW4 as there is ample corroboration of
this aspect from the testimony of PW5. Furthermore, it cannot be
termed as a material omission and an information of such
peripheral nature could have skipped the mind of the witness
while giving his statement to the police after a considerable
delay. At times, minor infirmities are indicators of a natural
testimony and perfection is an indicator of tutoring.
56. We may now come to PW5. He deposed that he knew A3,
A5, A7 and the family members of A1 through A7. He also knew
Criminal Appeal Nos. 2493-2502 of 2025 Page 52 of 96
about the dispute between the family members of A1 and
deceased. He was also approached to look for a prospective buyer
for the disputed land and was a part of the second conspiracy
meeting held in the last week of July, 2013 at the residence of
A5. He confirmed the presence of PW4 in the said meeting and
deposed that he was taken to the disputed land by A5 along with
A3 and A6. He further corroborated that in the said meeting, A1,
A2, A7, A8, A9 and A10 were also present. PW5 identified all
the accused persons present in the Court except A4, which is
consistent with his testimony that A4 was not present in the said
meeting. He further deposed that on being asked regarding the
disputed character of the land, A5 assured him that Subbaiah will
be no more. He also heard A3 speaking on a call to A4 and
assuring him that he need not fear as doctor will be no more in a
few days. PW5 later got to know about the murder of Dr.
Subbaiah, but he took no further interest in the matter until
12.12.2014, when he visited Kanimadam and discovered that A5
had been arrested in connection with the murder of Dr. Subbaiah.
57. PW5 was subjected to cross-examination on similar lines
as PW4 and we find no substance in the same to impeach the
evidence of PW5 for similar reasons, as noted above. The only
crucial circumstance that needs to be addressed is that there was
a considerable delay between the date of knowledge of offence
by PW5 and date of disclosure made by him to the police. He has
Criminal Appeal Nos. 2493-2502 of 2025 Page 53 of 96
accepted that he discovered the offence in September, 2013
through news channels, however, he never disclosed to anyone
until 12.12.2014 when he visited Kanimadam. This explanation
might have failed to pass the test of judicial satisfaction had PW5
been the only primary witness of the prosecution. However, the
testimony of PW5 is duly corroborated by the testimony of PW4
as well as by PW3 insofar as he disclosed the names of the
conspirators, as heard by him during the internal discussion of
the assailants on the date of murder. In view of this material
corroboration, we are not prepared to discard the testimony of
PW5 by placing undue reliance on delay. Moreover, apart from
general and vague suggestions during cross-examination, the
accused persons have not shown any circumstance to indicate
any motive or tutoring of PW5.
58. The next direct witness is PW12 – the approver. He gave
a detailed testimony regarding the timeline of conspiracy, nature
of conspiracy, participants in the conspiracy, flow of money and
the final act of commission of murder. PW12 not only disclosed
the details which were accessible to the investigating agency but
also provided exclusive details such as the place of stay of the
assailants during their visit to Chennai, both during the first
attempt and the second time when the act was completed. The
presence and involvement of PW12, both in the conspiracy
meetings and at the place of occurrence, has been independently
corroborated by the other direct witnesses such as PW2, PW3,
PW4 and PW5. The first conspiracy meeting was not only
witnessed by PW12, but also by PW53, who is again an
independent public witness. PW53 deposed regarding the first
meeting which took place in July, 2013, which was attended by
A5, A3, A7, A8 and A9. In the said meeting, various remarks
were made by the participants regarding the need to do away with
Dr. Subbaiah. Importantly, in the said meeting, A5 had asked A3
to get the photograph of the deceased and the meeting was also
joined by A1 and A2 at the instance of A3. He also deposed
regarding the involvement of A4, specifically his visit at the
house of the deceased which led to the decision of not killing the
deceased in his house. Despite specific evidence to the effect that
A4 had specifically come to Chennai from Bangalore and had
taken leaves from his company, no counter version was presented
by A4. Notably, the burden shifted on A4 once acceptable
evidence was led against him, and he ought to have discharged
it. He could have easily disproved the said evidence by
examining witnesses from the company, but he failed to do it.
The testimony of PW53 cannot be read in isolation and must be
read with the surrounding evidence on record. On a
comprehensive perusal of the same, it is clear that isolated and
independent prosecution witnesses have deposed on similar lines
and their testimonies form part of a consistent and uninterrupted
chain.
59. Pertinently, the manner in which the evidence of the
approver/PW12 has been appreciated by the High Court requires
specific deliberation. While evaluating his evidence, the High
Court firstly dealt with the allegation of bias on the part of the
Sessions Judge who granted pardon to the approver. In doing so,
the High Court suo moto took an additional document Ex. C6 on
record, which was a letter sent by the concerned Sessions Judge
to the High Court on the administrative side, seeking transfer of
the present case. The letter was addressed by the Sessions Judge
on her own, after she discovered a potential conflict of interest,
without being flagged by either side. In view of the said letter,
the matter was eventually transferred to a different Judge and
admittedly, trial was concluded by a different Judge. The
evidence of the approver/PW12 was also recorded before a
different Judge. In an unusual exercise of power at the appellate
stage, the High Court took the letter addressed on the
administrative side on record as a fresh document, and placed
reliance upon the same to arrive at a finding of reasonable
apprehension of bias, without providing an opportunity to the
prosecution to cross question the said document or to the
concerned Judge to make a representation against the
unwarranted evaluation of her conduct in the present case despite the fact that she did not pass the final judgment of conviction. No doubt, the power of the Appellate Court to record additional evidence is undisputed, however, the manner of exercise of such power must be aligned with the procedure in place. The said letter was taken on record at the instance of the accused persons, and
that too in the final judgment. Moreover, the Court did so without
even questioning as to why the accused persons never raised any
objection regarding the grant of pardon or bias at any point of
time during the trial.
60. Even if we brush aside the manner of taking the letter on
record and go into its contents, we are of the view that the letter
itself suggests no apprehension of bias. The High Court failed to
appreciate that the very fact that the concerned Judge voluntarily
disclosed the potential conflict at the first available opportunity,
without being asked by any party, and the same was accepted by
the High Court on the administrative side, reflected fairness on
the part of the concerned Judge. The matter was eventually
transferred to another Judge who conducted the trial. Notably, the
question of judicial bias is to be approached on the standard of
reasonable apprehension alone, and not on the proof of actual
bias. The High Court erred in imputing bias upon the concerned
Judge while failing to acknowledge that the disclosure was made
voluntarily by the concerned Judge, which was a positive act to
avoid any apprehension of bias. Even otherwise, apart from
granting pardon to PW12, the concerned Judge played no role in
the adjudication of the case. Even the evidence of PW12 was
recorded in the presence of the successor Judge. Nevertheless,
the High Court found that the biasness on the part of the Judge
may not have affected the outcome of the case, but it raised a
doubt on the credibility of PW12.
61. We fail to understand the reasoning adopted by the High
Court on this aspect. PW12 was granted pardon on the promise
of ‘true and full disclosure’ made by him and the Judge had no
role to play in the voluntariness, truthfulness and
comprehensiveness of the disclosure made by PW12. The grant
of pardon is a limited exercise and no doubt, the testimony of an
approver is always taken with a pinch of salt and is generally
accepted only on due corroboration. However, the High Court
erred in adding an extra layer of circumspection on the testimony
of the approver by raising doubts on the fairness of the Judge who
granted the pardon. Not only was the apprehension of bias ill
founded, but the ultimate decision of granting pardon was also
not unusual in any sense. The High Court appears to have fallen
for a narrative that ought not have featured in the appreciation of
evidence on record. Suffice to note that the testimony of PW12,
being a testimony of approver, must be approached with caution
and by following the rule of prudence which requires due
corroboration of such a testimony.
Criminal Appeal Nos. 2493-2502 of 2025 Page 58 of 96
62. In the present case, as noted above, the evidence of PW12
is not in isolation from the other evidence on record. The
disclosure made by PW12 is specific in nature and is wholly
consistent with the other direct and circumstantial evidence on
record. Furthermore, in the facts of the case, it is not the case that
the prosecution is standing on the evidence of the approver alone.
At best, the approver’s evidence has played the role of making
the chain of evidence more consistent and wholesome. The
prosecution has led ample independent evidence to prove the
charges in question.
63. The accused persons have taken certain common
exceptions to the testimonies of the direct witnesses i.e. manner
of discovery of the witnesses, lack of test identification parade,
unnatural testimonies, lack of corroboration, existence of
contradictions and omissions in their testimonies, etc. The High
Court has also disbelieved the testimonies of the material
witnesses on similar grounds. Having evaluated the evidence on
record, we are of the opinion that the High Court has fell in a
grave error in appreciating the evidence on record. The
testimonies of the direct witnesses of the prosecution are fairly
consistent with each other. No doubt, there are certain
contradictions and omissions in their testimonies, however, mere
presence of contradictions and omissions does not demolish the
credibility of public witnesses, as long as they appear to be
Criminal Appeal Nos. 2493-2502 of 2025 Page 59 of 96
natural and are duly explained. The High Court appears to have
proceeded on a presumption of falsehood and the findings in the
impugned judgment are not based on concrete doubts; rather, the
findings are based on suppositions and the Court’s own
subjective assessment of how a public witness is supposed to
depose before the Court.
64. When we say that every contradiction is not fatal, we
essentially mean that every contradiction carries different weight
and the weight is to be adjudged in light of the surrounding
evidence and the peculiar facts associated with a witness,
including the fact that a public witness is almost invariably out
of his comfort zone while deposing before a Court of law, that
too in a murder trial. In the present case, the accused persons have
stressed heavily on the contradictions and omissions appearing
in the testimony of PW12. Elaborate comparisons have been
drawn between the statement of PW12 under Section 161 Cr.P.C.
recorded during investigation (when he was an accused) and oral
deposition in the Court. No doubt, there are contradictions and
omissions between the two statements, however, the
contradictions and omissions do not surface without a
satisfactory explanation. At the time of recording the statement
under Section 161 Cr.P.C., PW12 was being questioned as an
accused/A10 and not as a witness. His natural disposition at that
time was to conceal as much as he could and to somehow
Criminal Appeal Nos. 2493-2502 of 2025 Page 60 of 96
exonerate himself. Moreover, the said statement was recorded by
the police and without administering any oath. However, after
grant of pardon, PW12 was examined as a witness on oath and it
was for the first time that PW12 made a true and full disclosure
of the incriminating facts, without the overarching fear of selfincrimination.
65. The contradictions between the two statements would have
made significant difference had the character of the person
making the statements remained the same throughout. However,
the statement was bound to change after the grant of pardon. In
fact, the whole object of grant of pardon is to elicit full disclosure
in the aid of prosecution. If a statement given by an approver
making true and full disclosure, after grant of pardon, is to be
rejected on the ground that it contradicted with the earlier
statement recorded by the police when the approver was an
accused, it would effectively frustrate the very object of pardon
in the course of a criminal trial. The phrase ‘true and full
disclosure’ contains within its sweep an inherent
acknowledgement that the accused had not disclosed truthfully
and fully prior thereto. Therefore, the High Court adopted an
infirm approach in the appreciation of evidence of the approver.
66. Having said so, we must briefly address an issue agitated
by both sides i.e. whether the statement of the accused recorded
Criminal Appeal Nos. 2493-2502 of 2025 Page 61 of 96
during investigation could be treated as a statement Section 161
Cr.P.C. and consequently, could be used for the purpose of
contradiction under Section 162 Cr.P.C. The short answer to this
question is yes. The long answer, without entering into any
elaborate discussion, is that the issue is no more res integra. It is
clear that a non-confessional statement of an accused recorded
by the investigating officer during investigation qualifies as a
statement under Section 161 Cr.P.C. and if the accused steps into
the witness box at a later stage, it could be put to the accused for
the purpose of contradiction. The accused, while being examined
under Section 161 Cr.P.C., is a person acquainted with the facts
and circumstances of the case. However, two things stand out.
Firstly, the weight to be attached to such contradictions needs to
be analyzed on a case to case basis, and secondly, a confessional
statement shall be hit by Section 25 of Evidence Act and cannot
be used for any purpose except for the purpose specified in
Section 27 of Evidence Act.
67. Coming back, we are of the considered opinion that the
approach adopted by the High Court in appreciating the
contradictions in the approver’s testimony, was erroneous. The
contradictions appearing in his testimony are reasonably selfexplanatory
and do not carry much weight, once seen in light of
the circumstances of the case, change of character of the witness
Criminal Appeal Nos. 2493-2502 of 2025 Page 62 of 96
from an accused to an approver and independent corroboration
by the surrounding evidence.
68. It is necessary, at this stage, to note that the present case is
not one wherein the conviction is solely based on the testimony
of the approver. The approver’s testimony has been substantially
corroborated by independent evidence of the public witnesses
and has been found to be consistent with the entire chain.
69. As regards the failure of the investigating agency to
conduct test identification parade of certain witnesses, we may
suffice to note that the conduct of a test identification is a
discretionary act of the investigating agency and it is only meant
to lend credence to the actual identification which takes place
before the Court during evidence. Moreover, some PWs such as
PW4 and PW5 admittedly knew the accused persons prior to the
offence and therefore, no purpose would have been served by
conducting test identification parades for such witnesses. The
real test of identification is whether the witnesses have duly
identified the accused persons in the Court. The evidence
recorded by the Trial Court reflects that at the time of
identification of the accused persons by the PWs, no objections
were raised and even during cross-examination, no credible
circumstance has been highlighted to raise a question on the
sanctity of identification made before the Court. In such
Criminal Appeal Nos. 2493-2502 of 2025 Page 63 of 96
circumstances, to raise a question on the identification done by
the witnesses on the sole ground of non-conduct of TIP, would
be nothing but a speculative exercise. It is not the domain of the
Court to raise procedural doubts in this manner, especially when
such doubts were not raised by the accused persons themselves
at the time of recording of evidence.
70. We are afraid, various other issues have also been dealt in
a similar pre-conceived manner in the impugned judgment. The
PWs were extensively cross-examined on behalf of the accused
and they not only remained fairly consistent but also remained
committed to their testimonies. In other words, the accused
persons could not move past the adverse suggestions given to the
witnesses of the prosecution and all such adverse suggestions
were unequivocally denied. Furthermore, the accused persons
did not lead any independent or counter evidence to impeach the
witnesses. However, despite such denials and absence of counter
evidence, the High Court went on to treat the ‘suggestions’ given
by the accused persons as ‘doubts’. We are not prepared to accept
it as the correct approach for appreciation of evidence and are
constrained to observe that the High Court has committed a grave
error in adopting the said approach.
71. Having examined the direct evidence led on behalf of the
prosecution, we may now come to indirect or circumstantial
Criminal Appeal Nos. 2493-2502 of 2025 Page 64 of 96
evidence on record, which overwhelmingly supplements the
direct evidence.
72. Prior to the commission of the fatal act, a previous attempt
was made by the assailants on 14.08.2013. The said fact was
disclosed by PW12 and to give effect to the plan, A8, A9 and
PW12 had arrived in Chennai on 11.08.2013 and had stayed in
Bakkiyam Lodge. The stay in Bakkiyam Lodge has been proved
by PW24, who produced documentary evidence including bill
book/M.O.11, arrival register/M.O.12 and departure
register/M.O.13 to show the arrival of the assailants. The seizure
of the objects was witnessed by independent witness PW23. A
prior connection and involvement of A3, A5 and A7 in the first
attempt is further corroborated by PW8 who witnessed A7 along
with A8, A9 and PW12/A10 in R.A. Puram on 14.08.2013.
Notably, earlier, PW8 was also asked by the accused persons to
look for a suitable buyer for the disputed land. PW8 is an
independent witness who knew A3 since 2007. His wife is a
District Munsif and he himself joined St. Peter College as an
Assistant Professor. Despite various suggestions, we find no
plausible circumstance to impute any motive to this witness or to
question his credibility. The social standing of the witness
reflects that there could be no possible reason for him to depose
falsely.
Criminal Appeal Nos. 2493-2502 of 2025 Page 65 of 96
73. As regards money trail, the transfer of money between
various key participants of the conspiracy is admitted, as noted
by the High Court as well. However, the purpose of such transfer
is questioned. Initially, the money travelled from A1 and A3 to
A5. Thereafter, A5 transferred it to DW2, who withdrew the
same and handed over the cash to A6. Further, A6 distributed the
money to the assailants A8, A9 and PW12 after retaining his cut.
Notably, the receipt of money from A6 is confirmed by PW12.
The transfers made by A5 to DW2 and subsequent withdrawals
within 1-2 days of each transfer are substantiated by the bank
statements on record. PW37 is another witness regarding the
money trail who had witnessed the handing over of money by
DW2 to A6 at the former’s house. The accused persons have
presented a convoluted version of the transfer of this amount.
While cross-examining PW37, a suggestion was given to PW37
to the effect that he did not know Veeramani/DW2 and never
visited her house. However, in the statement under Section 313
Cr.P.C., a justification was advanced that the amount transferred
to Veeramani/DW2 was meant for investment in C&G Textiles
Company. If such was the case, then the handing over of the said
amount by Veeramani/DW2 to A6 stands admitted, and it
strengthens the testimony of PW37 who had witnessed it.
Another question raised on behalf of the accused persons is that
if the amount was transferred to A6 and further to the assailants
Criminal Appeal Nos. 2493-2502 of 2025 Page 66 of 96
through DW2, then DW2 ought to have been made an accused or
a witness in the case. We find that the question is incapable of
advancing the case of the accused persons as its answer lies in
the testimony of PW37. The said witness has deposed that while
handing over the money to A6, DW2 had asked him as to why
A5 was paying so much money to A6. This statement indicates
that DW2 was not aware of the purpose of the transfer being
made through him and therefore, there was no error on the part
of the prosecution in not making him an accused in the present
case. Furthermore, it is the admitted position that DW2 is the
brother in law of A6 and therefore, the prosecution could have
legitimately opted to not examine a family member of the
accused persons as a witness for the prosecution. We find nothing
unusual in it.
74. On a careful examination of the money trail, it could be
observed that the money trail appears to be well aligned with the
timeline of conspiracy and despite two incriminating testimonies
regarding the purpose of the money trail, the accused persons
have only managed to present conflicting versions. The
circumstantial evidence constituted by the money trail is
consistent with the direct evidence on record. Importantly, we
may also note that despite convoluted statements regarding the
money being meant for investments, the accused persons have
not led any evidence to that effect. If the money was indeed
Criminal Appeal Nos. 2493-2502 of 2025 Page 67 of 96
transferred for making investments, assuming that the accused
persons could actually invest direct cash in the company, it would
not have been an onerous task for the accused persons to prove
the said investments in their defence, so as to dispel the theory of
the prosecution. Unfortunately, no such evidence was led on this
aspect.
75. The chain of circumstances is further fortified by the
evidence of travel made by the accused persons, purchase of
second hand motorcycle, place of stay in Chennai from
13.09.2013 to 14.09.2013, inquiries made from the secretary of
the deceased (PW34) and manager of Billroth Hospital (PW11),
purchase of knife from PW31 by A8, discovery of the knife on
the basis of admissible disclosure of fact made by the accused
persons under Section 27 of Evidence Act and identification of
knife by PW31 in the Court. Interestingly, the testimony of PW31
has been effectively admitted by A7 to A9, as evident from the
cross-examination conducted by them. In cross-examination, the
accused persons suggested to PW31 that the knife was taken by
the accused persons for cutting tender coconut and PW31
answered in affirmative. This suggestion effectively amounts to
an admission that the knife was indeed taken by the accused
persons from PW31 and therefore, the accused persons have
themselves added credibility to the evidence of PW31. The
purchase of knife M.O.1 by the accused persons from PW31,
Criminal Appeal Nos. 2493-2502 of 2025 Page 68 of 96
subsequent discovery of knife at the instance of the accused
persons and identification of the said knife by PW31 in the Court
are heavily incriminating circumstances, which not only indicate
towards the solitary conclusion of guilt but also lend credence to
the testimony of direct witnesses, especially the approver/PW12.
76. Notably, the post mortem report confirmed that the injuries
could have been inflicted with M.O.1, which is sufficient to
connect the weapon of offence with the injuries which caused the
death of the deceased. Unfortunately, in totality, the impugned
judgment has not appreciated the recoveries made from the
accused persons in correct perspective. The recovery of
objects/documents (few documents have been inadvertently
marked as objects in evidence) such as visiting card, knife, bag,
blood-stained shirt etc., exclusively at the instance of the accused
persons and on the basis of the disclosures made by them, ought
to have been considered while appreciating the overall effect of
the evidence. It would have been a different scenario if the
objects and their whereabouts were in common knowledge and
discoveries would not have been effected on the basis of
exclusive disclosures. However, the High Court appreciated the
material objects in isolation and erred in not attaching due weight
to their discoveries. For instance, mere discovery of a visiting
card, if seen in isolation, is certainly not of much consequence.
However, if the discovery forms part of a series of incriminating
Criminal Appeal Nos. 2493-2502 of 2025 Page 69 of 96
events and conspiracy meetings, it could not be brushed aside as
immaterial.
77. Pertinently, these crucial circumstantial aspects constitute
a series of prior and subsequent events/conduct which are
consistently aligned with the chain of circumstances.
Understandably, previous and subsequent events/conduct are
relevant facts as per the law of evidence and therefore, they are
material for forging the case of the prosecution. One of the
fundamental rules of appreciation of evidence is that evidence is
to be appreciated as a whole and in a comprehensive manner. If
pieces from a chain of evidence are picked in isolation, their
meaning and inferences flowing therefrom are bound to be
different. At times, even a seemingly weak link falling in the
chain of evidence acts a bridge in completing the chain.
78. Having observed so, we may now come to the electronic
and corresponding expert evidence on record. There is a
significant controversy with respect to the said material. The
electronic evidence has been relied upon to corroborate the oral
and documentary evidence discussed above. The prosecution has
relied upon call detail records of the accused persons to prove the
conspiracy and CCTV footage/Gait Analysis to prove the
identities of the assailants – A8 and A9.
79. As regards call detail records (CDRs), the primary
objection is that the CDRs Ex. P112 to Ex. P145 have been
exhibited by PW45, who was working as a Sub-Inspector in
Cyber Police Unit. He received the CDRs from the telecom
companies and they were exhibited to show that the assailants
and other accused persons were in contact with each other. PW45
exhibited the CDRs along with a certificate under Section 65-B
of Evidence Act. The High Court rejected the CDRs on the
ground that the exhibition of CDRs by PW45 would be of no
consequence as the concerned officers of the telecom companies
were not examined to prove the call details.
80. On an examination of the CDRs and the mode of proof
adopted by the prosecution to prove the same, we find ourselves
in agreement with the view taken by the High Court to reject this
piece of evidence. Admittedly, the CDRs were generated from
the data maintained by the telecom service providers and were
sent to PW45 by email. PW45 took printouts of the same and
produced in evidence by exhibiting his own certificate under
Section 65-B of Evidence Act. Notably, the prosecution did not
examine the concerned nodal officers of the telecom companies
as witnesses to prove the CDRs generated by the companies and
that too, without explanation. Further, PW45 did not even place
on record the relevant emails whereby the CDRs were sent by the
companies to him. We are of the view that the prosecution has
fallen short of proving the CDRs in this case. PW45, at best,
could have only proved the receipt of CDRs by him on his
computer system and could have filed a certificate to that effect.
However, the CDRs were not generated by PW45 and he was not
competent to prove the contents of the same. Although, PW45
could have legitimately taken print outs of the CDRs from his
system and could have filed a certificate to that effect, however,
the prosecution ought to have simultaneously examined the nodal
officers as well, so as to prove that the CDRs filed by PW45 were
indeed generated and sent by the telecom companies. As noted
above, the emails though which the CDRs were mailed to PW45
were also not proved by the prosecution. Moreover, the CDRs
were filed in an editable format.
81. Therefore, the CDRs ought to have been proved along with
a certificate under Section 65-B certificate of the competent
person/nodal officer who was in control of the system which
generated the CDRs. Furthermore, the failure to examine the
nodal officers raises credible questions regarding the chain of
custody of the electronic record. The said examination was
essential to prove that the chain of custody was unbroken and
remained coherent from the telecom companies to the
investigating agency and further, to the Court.
82. Having said so, we are of the view that the failure of the
prosecution to prove the CDRs shall not affect the outcome of the
matter. The CDRs have been relied upon for corroborative
purposes only, in order to prove the connection between the
accused persons. Since, there is ample direct evidence to prove
the conspiracy and inter-se connection between the accused
persons, mere failure to prove an additional piece of evidence to
prove the same fact shall not have any adverse impact on the
outcome. After all, what is important is the quality, and not the
quantity of evidence.
83. As far as the evidence related to CCTV footage and gait
analysis report is concerned, there are two aspects which require
discussion – first, whether re-enactment of a crime scene by the
accused amounts to personally incriminating testimony barred by Article 20(3) of the Constitution and second, whether the CCTV footage and gait analysis report are admissible in evidence and can be relied upon.
84. On the first aspect, the High Court has given a conclusive
finding that compelling an accused to re-enact or demonstrate a
scene of occurrence amounts to compelling him to reveal
personal knowledge and to be a witness against himself within
the meaning of Article 20(3). Further, re-enactment of a scene of
crime would amount to giving a confession to the police in police
custody, which is inadmissible in evidence. The relevant portion
of the impugned judgment is reproduced thus:
“But in our view, obtaining voice sample is
different from asking the accused to reenact the
occurrence; Asking the accused to reenact the
occurrence would amount to personal
testimony. By reenacting the occurrence, the
accused conveys information based on his
personal knowledge and thereby becomes a
witness against himself. It is not merely an
identification data. For instance, if the accused
is simply asked to walk, which would enable
comparison of his gait appearance, he does not
convey any information based on personal
knowledge and it would be in the realm of
'identification data'. However, reenacting the
occurrence certainly leads to revelation of facts
within personal knowledge. Therefore, we are
of the view that asking the accused to reenact
the occurrence would amount to becoming a
witness against himself, thereby offending
Article 20(3) of the Constitution of India. That
apart, the reenacting of the occurrence would
amount to giving a confession to the police or a
confession while in police custody. Therefore,
it has no evidentiary value and it cannot be used
for comparison with the video containing the
recording of the actual occurrence, if any.”
85. The exposure of an accused and the permissible limits of
such exposure during investigation have been the subjects of
constant evolution in the criminal jurisprudence. On a
jurisprudential scale, we begin with Article 20(3) of the
Constitution, which declares that no accused could be compelled
to be a “witness against himself”. Effectively, it indicates that an
accused cannot be compelled to incriminate himself. The
statutory manifestation of this concept is found in Sections 25
and 26 of Evidence Act11, which render a confession made by an
accused in police custody as inadmissible. A confession made in
police custody is deemed to be involuntary or under compulsion
and therefore, it is per se inadmissible. From time to time, we
come across various investigative techniques which present
renewed challenges and raise questions pertaining to the
violation of these principles. Illustratively speaking, questions
such as - whether compelling an accused to provide finger prints
would amount to compelling him to be a witness against himself;
or whether compelling an accused to give his voice sample would
amount to him being a witness against himself; or whether
compelling an accused to provide his mobile password would
amount to compulsion to be a witness against himself etc., have
arisen in the past and have been judicially settled. Such issues
11 Now Sections 23(1) and 23(2) of Bharatiya Sakshya Adhiniyam, 2023(“BSA”) emerge primarily because the larger public interest in adopting technically advanced investigations often comes in a conflict with the constitutional and statutory rights of the accused which ensure fairness and lie at the heart of our criminal justice system.Therefore, such issues demand appropriate balance.
86. Invariably, the core test that has been applied in resolving
these issues is whether the act in question merely requires an
accused to act in a certain manner or to perform an act, without
giving any personal testimony, or in alternative, whether it
compels him to disclose incriminating information from his
personal knowledge. If it is the former, the act is constitutionally
valid as it merely amounts to assistance in the course of
investigation and the act, in itself, does not amount to any
personal testimony. However, if it is the latter, the act becomes
constitutionally impermissible as it effectively compels an
accused to be a “witness against himself”.
87. In the present case, the police conducted an exercise of re-enactment or demonstration of the crime scene by involving the
accused persons. A crime scene re-enactment is a technique
which is gaining prominence in the investigation of heinous
offences. On its own, a re-enactment exercise does not constitute
any direct form of evidence of the offence, as it is essentially in
the nature of recreated evidence. However, it serves the limited
purpose of explaining the physical attributes of the occurrence,
such as place of occurrence, lighting conditions at the relevant
point of time etc., as well as to visualize the manner of
commission of the offence. It may not directly assist the Court in
reaching any conclusion, but may help in the appreciation of the
surrounding evidence on record, especially the visual evidence
of the events.
88. The re-enactment or demonstration of an occurrence by an
accused is often based on eye-witness accounts of the offence or
on the basis of CCTV footage extracted from nearby cameras
installed in public spaces. Nevertheless, it cannot be held as a
general proposition that every re-enactment or demonstration of
a crime scene per se amounts to personal testimony of the
accused. If the re-enactment is merely based on a direction to
walk or to act a certain way or to imitate a visual sequence, it
does not necessarily involve any physical manifestation or
disclosure of the personal knowledge of the accused. In that
sense, it does not amount to any personal testimony. However, if
the accused is somehow led into demonstrating the incriminating
acts committed by him from his own knowledge, the same would
amount to testimonial compulsion and would be squarely hit by
Section 25 and 26 of Evidence Act. Therefore, it would be
dangerous to lay down a general rule against the admissibility of
evidence based on re-enactment or demonstration of the
occurrence, as it would effectively kill a potent and scientific
investigative technique. The right approach is to tread a
proportionate path and see whether the re-enactment is merely a
directed demonstration to analyse physical attributes of the
suspects or a manifestation of the personal knowledge of the
accused. Although, we must be mindful of the fact that
inherently, by its very nature, an exercise of re-enactment of
occurrence is carried out as per the directions given by the
investigating officer and the re-enacted version does not amount
to a personal version of the accused. Rather, it remains an
enactment or demonstration of the version of the investigating
officer. Per se, a re-enactment of an occurrence is merely
‘created’ document/evidence and on its own, it hardly proves
anything. On the basis of such re-enactment, expert analysis such
as gait analysis is carried out, which gives rise to a distinct piece
of evidence, with distinct implications. Such expert evidence is
not based on the personal testimony of the accused and is merely
an analysis of the physical attributes of the accused, which could
be used for the purpose of identification during trial. Thus, the
thin line between ‘re-enactment’ and ‘evidence based on re-enactment’ needs to be acknowledged.
89. Importantly, it needs to be noted that evidence based on a
re-enactment or demonstration is not a substantive piece of
evidence of the actual commission of the offence. It is merely
corroborative evidence which may be useful to corroborate the
identities and physical attributes of the suspects, sequence of the
alleged occurrence, physical attributes of the place of occurrence
etc. On its own, re-enacted evidence cannot be made the basis to
arrive at a finding of conviction.
90. In view of the above discussion, we are of the view that
the High Court has committed an error in holding that reenactment
by the accused persons amounted to their personal
testimonies within Article 20(3) of the Constitution. In fact, the
accused persons have themselves questioned the gait analysis
report on the ground that re-enactment carried out by them was
artificial and was made to align with the movements shown in
the CCTV footage and therefore, similarities were bound to
emerge. It shows that the re-enactment by the accused persons
was not based on their personal knowledge and it was artificially
staged to draw some inferences regarding physical attributes of
the accused persons. Such inferences regarding physical
attributes are invariably drawn using other attributes such as
voice sample, finger prints, thumb impressions, etc.
91. We may now come to the second aspect regarding
electronic evidence in the present case i.e. whether the CCTV
footage and gait analysis report are admissible in evidence and
can be relied upon. Gait analysis is a scientific technique which
Criminal Appeal Nos. 2493-2502 of 2025 Page 79 of 96
is used to analyze the walk of a person and at times, also to
examine the other physical attributes of human body such as
motion, appearance etc. For decades now, evidence of gait
analysis on the basis of acquaintance has been invariably used in
criminal trials. In such evidence, a witness well acquainted with
the accused steps in to identify the accused on the basis of his
knowledge of the gait of the accused. Of late, gait analysis is
being carried out by experts on the basis of visual/electronic
evidence, such as CCTV footage. In this examination, the bodily
movement of the suspect is captured in a re-enactment or
demonstration video and the same is compared with the CCTV
footage or other video of the actual occurrence. The experts
generally step in to confirm ‘similarities’ between the persons
seen in the two pieces of evidence, although it cannot be said
with certainty that the two persons are exactly the same. It is for
this reason that gait analysis reports serve as corroborative pieces
of evidence, to fill in the gaps in the mind of the Judge by
corroborating the remaining evidence of identity or eye witness
accounts, and to resolve the last-minute doubts in the mind of the
Judge before arriving at a final conclusion.
92. However, the gait analysis report must be based on a
comparison of two admissible and reliable pieces of evidence. In
other words, the re-enactment video and CCTV footage of actual
occurrence must be proved first in a reliable sense. A comparison
Criminal Appeal Nos. 2493-2502 of 2025 Page 80 of 96
of two unreliable pieces of evidence cannot produce a reliable
piece of evidence. We say so because in the present case, the gait
analysis has been carried out on the basis of the re-enactment
video and CCTV footage obtained from Shrestha Subhashree
Apartment. However, we find ourselves unable to place reliance
on the CCTV footage because of serious apprehensions
regarding mishandling and inconsistent chain of custody. The
CCTV footage was extracted from the camera installed at
Shrestha Subhashree Apartment and as per PW57, it was copied
in a pen drive by one police official, namely PC Parthiban, on the
date of occurrence itself i.e. 14.09.2013. He kept the pen drive
with himself and was never examined as a witness by the
prosecution. The investigating officer failed to act on the CCTV
footage for over a month, and on 09.10.2013, PW55 recovered
the hard disk (M.O.9) as per memo Ex. P28. The said hard disk
was forwarded to FSL and was returned as unexamined for want
of DVR. On 26.10.2023, PW56 (new I.O.) learnt that DVR was
already scrapped and a new DVR system had been installed
there. Thus, what the investigating agency was left with was a
hard disk purportedly containing the CCTV footage of the
camera installed at Shrestha Subhashree Apartment, without any
DVR to confirm that the hard disk was indeed extracted from the
video recorder of the same camera.
Criminal Appeal Nos. 2493-2502 of 2025 Page 81 of 96
93. The investigating agency tried to move on from this
roadblock and sent the hard disk/M.O.9 to a private agency,
namely Truth Labs. Importantly, this referral was not made for
analyzing the CCTV footage or for confirming the genuineness
of the footage. Rather, it was sent for conducting gait analysis of
the persons seen in the footage. PW54 extracted the footage from
the hard disk and took a copy in a USB drive. She produced the
said copy in the Court along with her report of gait analysis.
When the accused persons insisted for the production of cloned
copies from the hard disk, it was informed that the hard disk had
become corrupt. Although, copies made from the existing copy
in the USB drive were produced in the Court. A careful
examination of these circumstances would suggest that the
investigating officers have completely mishandled the electronic
evidence and have failed to maintain the chain of custody. The
camera was left unattended for over a month, hard disk was
extracted after an unexplained delay, DVR was destroyed due to
inaction on the part of the investigating agency and hard disk was
found to be corrupt when specific directions were given to
prepare clone copies from the hard disk. In such circumstances,
the overwhelming possibility that the gait analysis report has
been prepared on the basis of the copy of the CCTV footage and
not the original footage, cannot be denied. The possibility that
the copy obtained by PC Parthiban was used to conduct scientific
Criminal Appeal Nos. 2493-2502 of 2025 Page 82 of 96
examination, cannot be denied either, as the hard disk was
corrupted. A reasonable doubt, therefore, emerges in view of the
distorted chain of custody and destruction/corruption of the
original hard disk and DVR. In such circumstances, merely
because the copied footage was played in the Trial Court, it
cannot be held that the footage was proved in accordance with
the law. Therefore, we find it dangerous to place reliance on the
CCTV footage or the gait analysis report prepared on that basis.
The High Court has rightly rejected this piece of evidence.
94. However, as noted in case of CDRs, rejection of gait
analysis report shall not affect the outcome of the case. For, the
report has been relied upon for purely corroborative purposes to
prove the identities of A8 and A9, and in view of ample direct
and circumstantial evidence on record, both oral and
documentary, we feel no need for corroboration on the basis of
gait analysis. The identities of the accused persons have been
established to the satisfaction of the Court by credible eye
witness accounts, as discussed above.
95. We shall now move from the evidentiary analysis to the
motive for the commission of the offence. The prosecution has
led extensive oral and documentary evidence to prove that there
was a prolonged land dispute between the parties; that various
complaints regarding trespass were filed by the deceased or his
Criminal Appeal Nos. 2493-2502 of 2025 Page 83 of 96
family members against the accused persons; that an FIR was
also registered by the Land Grabbing Cell of the State Police, and
that the fencing was disturbed after the registration of FIR, for
which another FIR was lodged. The evidence of motive aligns
with the eye witness accounts of the conspiracy meetings
wherein similar discussions took place. There is ample evidence
on record to show the motive of the accused persons and it is trite
law that motive assumes significance in a case based on
substantive evidence. Conversely, a complete absence of motive
may have played as a factor in favour of the accused persons,
however, such is not the case here. The position of law in this
regard was succinctly discussed by this Court in a recent
pronouncement in Vaibhav v. State of Maharashtra12. The
relevant extract thereof reads as:
“23. We may now come to the next aspect of
the case i.e. absence of motive and consequence
thereof. It is trite law that in a case based on
circumstantial evidence, motive is relevant.
However, it is not conclusive of the matter.
There is no rule of law that the absence of
motive would ipso facto dismember the chain
of evidence and would lead to automatic
acquittal of the accused. It is so because the
weight of other evidence needs to be seen and
if the remaining evidence is sufficient to prove
12 2025 INSC 800
Criminal Appeal Nos. 2493-2502 of 2025 Page 84 of 96
guilt, motive may not hold relevance. But a
complete absence of motive is certainly a
circumstance which may weigh in favour of the
accused. During appreciation of evidence
wherein favourable and unfavourable
circumstances are sifted and weighed against
each other, this circumstance ought to be
incorporated as one leaning in favour of the
accused.”
96. Thus, the motive established by the prosecution further
fortifies the case of the prosecution and lends credence to the
finding of guilt of the accused persons on the basis of other
evidence on record.
97. In addition to the aforementioned infirmities in the
impugned judgment, we feel constrained to note that the High
Court has appreciated the entire evidence on an artificial
standard. We are afraid, the High Court has introduced numerous
fictional probabilities in the sequence of events, without being
supported by the record and cross-examination of the concerned
witnesses. Various aspects such as, the manner in which a public
person should behave; the manner in which the conspirators
should behave while discussing the conspiracy, the impossibility
of a conspiracy being discussed in front of third persons; the
potential of eye witnesses to actually decipher the conversations
between the accused persons; the exchange of money in the
Criminal Appeal Nos. 2493-2502 of 2025 Page 85 of 96
presence of stranger eyes; low economic profiles of certain
witnesses etc., have been assessed in a completely subjective
manner, detached from the objective explanations furnished by
the prosecution on all such aspects. No doubt, such aspects are
relevant in examining the evidence in a criminal case, however,
the Court cannot detach itself from the explanations on record
and cannot dismiss them in a subjective manner. On conspiracy,
for instance, the High Court has proceeded to lay down general
statements of law to the effect that a conspiracy is always hatched
in secrecy and cannot be heard by third persons. It went to the
extent of calling it an “insult to the criminal justice system” if it
is believed that the conspiracy was discussed in the presence of
eye witnesses. We are a little taken back with the sweeping nature
of remarks made in the impugned judgment. Effectively, to say
so would mean that there could possibly never be any direct
evidence of conspiracy. We often find ourselves reiterating that
conspiracies are generally hatched in secrecy, however, it does
not mean that direct evidence of conspiracy is an impossibility,
or that such evidence would get rejected on this notion alone.
98. The phrase ‘beyond reasonable doubt’, which marks the
standard of proof for the prosecution in a criminal case, is a
potent phrase. It does not mean any and every doubt. Rather, it
means a doubt which is so strong and reasonable that it
effectively creates space for an alternate theory in the mind of the
Criminal Appeal Nos. 2493-2502 of 2025 Page 86 of 96
Judge. Unsurprisingly, ordinary doubts are bound to emerge in a
case of this nature where the transaction and witnesses are
scattered across a wide spectrum. The job of a criminal court is
not to order lose acquittals by entertaining such vague and
ordinary doubts, convoluted theories and suppositions. In the
present case, the accused persons have conveniently refrained
from leading counter evidence on various aspects, such as money
trail, leaves taken by A4, his visit to Chennai etc. They also failed
to advance plausible explanations qua the incriminating evidence
against them. One of the accused persons attempted to introduce
a new fact and went to the extent of calling the death of Dr.
Subbaiah as an ‘accident’, and led no evidence to prove it.
Probably, counter evidence on such aspects could have created
reasonable doubts in the mind of the Court. When a party is in a
position to raise doubts and refrains from doing so, what does it
mean? The only reasonable inference is of the falsity of the
theories propagated by the accused persons. In such cases, the
Court is not expected to import its own doubts, without being
supported by the manner in which the case has been defended by
the accused persons. The dangers associated with the lose
application of the principle of ‘beyond reasonable doubt’ have
been discussed on various occasions by this Court. We would not
like to prolong our judgment by reiterating once again, and
Criminal Appeal Nos. 2493-2502 of 2025 Page 87 of 96
suffice to note that a lose acquittal of a guilty person is as
dangerous as the conviction of an innocent.
99. We may now, with a renewed hope, discuss and reiterate a
statement of law which has been reiterated innumerous times by
this Court in the past. The job of an Appellate Court is not to
automatically enter into reappreciation of evidence by force of
habit. It is to examine whether the Trial Court has committed any
perversity or illegality in the appreciation of evidence or has
rendered completely erroneous findings. Until and unless the
findings of the Trial Court are held to be erroneous or perverse
or illegal or impossible, the Appellate Court is not expected to
convert the appeal into a re-trial. Naturally, there is nothing
unusual if the Appellate Court feels that it might have taken a
different view if the trial was conducted by it. However, that is
not enough to reverse the findings of the Trial Court. As long as
the view taken by the Trial Court is a legally possible view, mere
availability of an alternate view is not enough to reverse such
view of the Trial Court. What the High Court has done in the
present case is to replace the legally possible view of the Trial
Court with one of its own. The Trial Court had conducted a
comprehensive appreciation of the evidence on record and had
arrived at the finding of guilt of the accused persons. The High
Court reappreciated the entire evidence, without actually
demonstrating any acceptable perversity or illegality in the view
Criminal Appeal Nos. 2493-2502 of 2025 Page 88 of 96
of the Trial Court. The respondents have beseeched this Court to
observe the limitations applicable to Appellate Courts, without
realizing that this Court is bound to analyze whether those limits
were observed by the High Court in the first place.
100. In view of the foregoing discussion, we are of the
considered opinion that the High Court has committed a grave
error in reversing the view of the Trial Court. Even without
regard to the breach of principles governing exercise of appellate
powers, the impugned judgment is unsustainable on account of
erroneous appreciation of evidence and for the reasons
mentioned above. We find that the findings of the Trial Court are
legally sustainable and stand restored. The judgment of the Trial
Court stands restored, and the conviction of the respondents is
upheld. Accordingly, A1/P. Ponnusamy, A2/Mary Pushpam and
A3/Basil P.M. are convicted for the commission of offences
punishable under Sections 302 read with 120-B and 120-B of
IPC; A4/Boris P.M. is convicted for the commission of offences
punishable under Sections 302 read with120-B and 120-B read
with 109 of IPC; A5/B. William, A6/Yesurajan and A7/Dr.
James Satish Kumar are convicted for the commission of
offences punishable under Sections 302 read with 120-B and
120-B of IPC; A8/Murugan and A9/Selva Prakash are convicted
for the commission of offences punishable under Sections 302,
Criminal Appeal Nos. 2493-2502 of 2025 Page 89 of 96
Section 302 read with 34/120-B, Section 341 and 120-B of IPC.
All the sentences shall run concurrently.
101. The State has already made a statement to the effect that
capital punishment is not pressed for in the present matter. Thus,
all the respondents/convicts are hereby sentenced to undergo
imprisonment for life along with fines imposed by the Trial
Court, for the offences mentioned above. The default sentences,
in case of default in payment of fine shall also remain the same.
102. We do not wish to conclude our judgment by merely
recording a conviction. Though the seriousness of the offence
cannot be understated, we believe that this Court has a slightly
larger role to play and thus, would like to make certain
observations. Parents love their children irrespective of their age
and continue to support them even when no one else does. In
their advanced years, they fail to question or resist their actions
out of affection and emotional dependence, believing it to be their
duty to protect and support them under all circumstances. It is in
this background that the role of A1 and A2 is required to be
appreciated.
103. The actions of A1 and A2, being the parents of A3 and A4,
appear to have stemmed from a deeply misplaced sense of
parental obligation and emotional attachment towards securing
the perceived welfare and future of their children as the parental
Criminal Appeal Nos. 2493-2502 of 2025 Page 90 of 96
instinct to protect and provide is one of the most powerful human
impulses which can, at times, cloud judgment and rational
thinking. In the present case, A1 and A2 played a very limited
role and acted largely in accordance with the directions of A3 and
A4. They joined the conspiracy at the instance of A3, and the
money from the account of A1 was utilized for the same. It must
also be borne in mind that A2 is a woman, and both A1 and A2
are in the advanced years of their lives. We would like to make
it clear that these observations are not intended to condone their
actions, but are made only for the limited purpose of appreciating
the human factors underlying their conduct.
104. At this juncture, we would like to refer to the observations
made by this Court in the context of reformation in Subha @
Shubhashankar vs. State of Karnataka and another 2025 SCC
Online SC 1426.
“13. The Constitution of India (hereinafter referred
to as the “Constitution”) which is the supreme law
of the land, encourages the reformation of
individuals, by granting them a new lease of life.
This is personified by Articles 72 and 161 of the
Constitution which empowers the constitutional
authorities to grant pardon to convicts. In light of
this, we would like to specifically elaborate on the
underlying principles pertaining to the powers
vested with the Governor under Article 161 of the
Constitution.
Criminal Appeal Nos. 2493-2502 of 2025 Page 91 of 96
Article 161 of the Constitution
“161. Power of Governor to grant pardons, etc.,
and to suspend, remit or commute sentences in
certain cases.—
The Governor of a State shall have the power
to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the
sentence of any person convicted of any offence
against any law relating to a matter to which the
executive power of the State extends.”
14. Article 161 of the Constitution has an inbuilt
laudable objective. This Article emphasizes
the role of the State to facilitate an offender to be
reintegrated into society, after realizing his mistake.
This power is sovereign, and is to be exercised on
the advice of the Council of Ministers. Thus, it
grants the Constitutional Court only a limited power
of judicial review.
15. Though the power conferred under
Article 161 of the Constitution might sound similar
to the statutory powers available under Sections 473
and 474 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (hereinafter referred to as the “BNSS”),
corresponding to Sections 432 and 433 of the
Criminal Procedure Code, 1973 (hereinafter
referred to as the “Cr.P.C.’), its powers are much
wider. While statutory provisions govern classes of
convicts collectively, the prerogative of pardon is
generally exercised discretely in specific instances.
Therefore, the scope of this power is much broader
and is to be applied on a case-to-case basis. A
constitutional power is fundamentally different and
distinct from a statutory one. While statutory
Criminal Appeal Nos. 2493-2502 of 2025 Page 92 of 96
powers are derived from laws enacted by
legislatures and remain subject to amendment or
repeal, constitutional powers originate from the
Constitution itself. Therefore, the power to pardon,
reprieve, respite, remit etc. forms part of the
constitutional ethos, goal and culture. Unlike
statutory provisions, which are tailored to address
specific scenarios or population demographics,
constitutional powers embody the State's
commitment to a broader ethical vision - one that
prioritizes humanity and equity, even in the
administration of punishment.
Maru Ram v. Union of India, (1981) 1 SCC 107
“72. We conclude by formulating our findings:
(1) We repulse all the thrusts on the vires of
Section 433-A. Maybe, penologically the prolonged
term prescribed by the section is supererogative. If
we had our druthers, we would have negatived the
need for a fourteen-year gestation for reformation.
But ours is to construe, not construct, to decode, not
to make a code.
(2) We affirm the current supremacy of
Section 433-A over the Remission Rules and shortsentencing
statutes made by the various States.
(3) We uphold all remissions and shortsentencing
passed under Articles 72 and 161 of the
Constitution but release will follow, in life sentence
cases, only on government making in order en
masse or individually, in that behalf.
(4) We hold that Section 432 and Section
433 are not a manifestation of Articles 72 and 161
Criminal Appeal Nos. 2493-2502 of 2025 Page 93 of 96
of the Constitution but a separate, though
similar power, and Section 433-A, by nullifying
wholly or partially these prior provisions does
not violate or detract from the full operation of
the constitutional power to pardon, commute
and the like.”
( emphasis supplied)
Shatrughan Chauhan v. Union of India, (2014) 3
SCC 1
“16. Articles 72/161 of the Constitution entail
remedy to all the convicts and are not limited to
only death sentence cases and must be
understood accordingly. It contains the power of
reprieve, remission, commutation and pardon
for all offences, though death sentence cases
invoke the strongest sentiment since it is the only
sentence that cannot be undone once it is
executed.
17. Shri Andhyarujina, learned Senior Counsel,
who assisted the Court as amicus commenced his
submissions by pointing out that the power reposed
in the President under Article 72 and the Governor
under Article 161 of the Constitution is not a matter
of grace or mercy, but is a constitutional duty of
great significance and the same has to be exercised
with great care and circumspection keeping in view
the larger public interest. He referred to the
judgment of the US Supreme Court in Biddle v.
Perovich [71 L.Ed. 1161 : 274 US 480 (1927)] as
also the judgments of this Court in Kehar Singh v.
Union of India, (1989) 1 SCC 204 : 1989 SCC (Cri)
86 and Epuru Sudhakar v. State of A.P., (2006) 8
SCC 161 : (2006) 3 SCC (Cri) 438.
Criminal Appeal Nos. 2493-2502 of 2025 Page 94 of 96
***
19. In concise, the power vested in the President
under Article 72 and the Governor under Article
161 of the Constitution is a constitutional duty.
As a result, it is neither a matter of grace nor a
matter of privilege but is an important
constitutional responsibility reposed by the
People in the highest authority. The power of
pardon is essentially an executive action, which
needs to be exercised in the aid of justice and not
in defiance of it. Further, it is well settled that the
power under Articles 72/161 of the Constitution
of India is to be exercised on the aid and advice
of the Council of Ministers.
***
47. It is clear that after the completion of the
judicial process, if the convict files a mercy
petition to the Governor/President, it is
incumbent on the authorities to dispose of the
same expeditiously. Though no time-limit can be
fixed for the Governor and the President, it is the
duty of the executive to expedite the matter at
every stage viz. calling for the records, orders
and documents filed in the court, preparation of
the note for approval of the Minister concerned,
and the ultimate decision of the constitutional
authorities. This Court, in Triveniben v. State of
Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri) 248,
further held that in doing so, if it is established that
there was prolonged delay in the execution of death
sentence, it is an important and relevant
Criminal Appeal Nos. 2493-2502 of 2025 Page 95 of 96
consideration for determining whether the sentence
should be allowed to be executed or not.”
(emphasis supplied)
16. From the above, we would only clarify that,
notwithstanding the existence of a Circular or a
Rule introduced by way of a statutory power under
Section 473 of the BNSS, the constitutional powers
granted under Article 161 of the Constitution, can
also be exercised in a given case. Thus, even in
cases where statutory mechanisms exist, the
constitutional mandate under Article 161 of the
Constitution remains inviolable and exercisable, in
order to ensure that justice in individual cases is not
constrained by procedural norms.”
105. It is in the backdrop of the aforesaid constitutional
principles, coupled with the peculiar mitigating circumstances
noticed in the present case, that we deem it appropriate to
facilitate the right of A1 and A2 to seek pardon by permitting
them to file appropriate petitions before His Excellency, the
Hon’ble Governor of Tamil Nadu. We would only request the
constitutional authority to consider the same, which we hope and
trust shall be done by taking note of the relevant circumstances
mentioned above.
106. Accordingly, we grant eight weeks’ time from the date of
this judgment to A1 and A2 to file appropriate petitions seeking
invocation of the power of pardon under Article 161 of the
Constitution of India. Till such petitions are duly considered and
Criminal Appeal Nos. 2493-2502 of 2025 Page 96 of 96
decided, A1 and A2 shall not be arrested and the sentence
imposed upon them shall remain suspended.
107. Save and except A1 and A2, all the respondents are
directed to surrender before the Trial Court within two weeks for
serving the sentences. Trial Court shall be at liberty to initiate
coercive measures in case of non-compliance.
108. We record our appreciation for the able assistance
rendered by the counsel for both sides.
109. The captioned appeals stand allowed in the aforesaid
terms. Interim application(s), if any, shall also stand disposed.
...…………………………………J.
[M. M. SUNDRESH]
...…………………………………J.
[SATISH CHANDRA SHARMA]
New Delhi
May 19, 2026.
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